Summary
Advice to the Lord Chancellor
The Legal Services Consultative Panel (LSCP) was established by the Access to Justice Act 1999 in January 2000.
The Panel has considered a reference made to it by the Lord Chancellor concerning an application to amend paragraph 603(e) of the Bar Council's Code of Conduct. The advice was given in December 2002.
The advice is published on behalf of the Panel by the Lord Chancellor's Department.
Copies of the Panel's advice are available from the Panel Secretariat (tel: Jan Farenden on 020-7210 8816 or e-mail Jan on: Jan Farenden
The panel comprises:
| Lord Justice Potter (Chairman) | Miss Karen Mackay | Mr John Randall QC |
| Professor John Bell | Mr Ian McNeil | Mr Simon Sapper |
| Professor Hugh Brayne | Mr Richard Moorhead | Mr Alan Street |
| Lady Elizabeth Finsberg | Ms Barbara Mensah | Ms Peta Sweet |
| Mr Charles Plant | Dr Matthew Weait |
• Principles
In considering and putting forward its advice on the application, the Panel has had regard to the principle which is central to the policy of the Courts and Legal Services Act 1990 and the Access to Justice Act 1999, namely the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice.
The Panel also took account of the five principles of good regulation identified by the Better Regulation Task Force (an independent group established in 1997 to advise the government) against which the appropriateness and effectiveness of any type of regulation should be tested, namely transparency, accountability, targeting, consistency and proportionality. In terms of "consistency" the Panel took account of other existing regulations including Principle 3.2 of the Council of the Bars and Law Societies of the European Union (CCBE) Code of Conduct and Sections 15.01 and 15.06 of the Law Society's Professional Rules, both of which relate to conflicts of interest.
• The General Council of the Bar's application
Paragraph 603(e) of the Bar Council's Code of Conduct currently restricts barristers from accepting instructions and/or acting if there is, or appears to be, a conflict or risk of conflict either between the interests of the barrister and some other person or between the interests of any one or more clients. The Bar Council was advised to consult Counsel by its Professional Conduct and Complaints Committee, following a complaint regarding a barrister who appeared on behalf of a company and, some ten years later, appeared on behalf of one of the company's opponents in unrelated litigation. The Committee expressed concern that paragraph 603(e), particularly in areas of law where there are only a few specialist practitioners, gives rival companies an unfair tactical opportunity to seek to "conflict out" the opposite side's counsel. The current wording restricts barristers from taking on a case where there is mere possibility that a conflict of interest might exist, whereas the tests formulated by the Law Society and CCBE do not include the words 'appears to be' and refer to a 'significant risk' of such conflict existing.
• Conclusion
In addition to the benefit of bringing greater consistency between the regulations of the Bar, the Law Society and the CCBE, the Panel considers that the rule change proposed by the Bar Council will be helpful to barristers in determining whether to refuse to accept a case on the grounds of conflict of interest, and helpful to clients in preventing abuse of the present wider wording by opponents in litigation so as to restrict their choice of counsel. The Panel therefore advises the Lord Chancellor that the proposed rule change should be approved subject to the following condition:
that the word "significant" is inserted before "risk" in Paragraph 603(e).
• Introduction
This advice relates to the General Council of the Bar's application to the Lord Chancellor dated 23 May 2002 to amend Rule 603 (e) of its Code of Conduct to remove ambiguity in the rule concerning conflicts of interest. The application was made under section 29(3) and Schedule 4 to the Courts and Legal Services Act 1990, as amended by Schedule 5 to the Access to Justice Act 1999. On 28 October 2002, the Lord Chancellor referred the proposed change to the Panel for advice under section 18A(3)(b) of the Courts and Legal Services Act. The Panel considered the referral at its meetings on 28 October 2002 and 25 November 2002.
In considering and putting forward its advice on the application, the Panel has had regard to the principle central to the policy of the Courts and Legal Services Act 1990 and the Access to Justice Acts 1999, namely the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice.
The Panel also took account of the five principles of good regulation identified by the Better Regulation Task Force (an independent group established in 1997 to advise the government) against which the appropriateness and effectiveness of any type of regulation should be tested, namely transparency, accountability, targeting, consistency and proportionality. For the purposes of achieving consistency the Panel took account of other existing regulations including Principle 3.2 of the Council of the Bars and Law Societies of the European Union (CCBE) Code of Conduct and Sections 15.01 and 15.06 of the Law Society's Professional Rules, both of which relate to conflicts of interest.
• The General Council of the Bar's application
The Bar proposes in its application to the Lord Chancellor, to remove the words "or appears to be" from paragraph 603 (e) as follows:
"(e) if there is or appears to be a conflict
or risk of conflict either between the interests of the barrister and
some other person or between the interests of any one or more clients
(unless all relevant persons consent to the barrister accepting the
instructions);"
In its commentary on the proposed rule change, the Bar Council states that Paragraph 603 (e) of its Code of Conduct restricts barristers from accepting instructions where there is a possibility of a conflict of interest, rather than requiring that the existence of such conflict be established. By way of background to this rule change, the Bar Council explains that it received a complaint regarding a barrister who appeared on behalf of a company and, some ten years later, appeared on behalf of one of the company's opponents in unrelated legislation. The Bar Council was advised to consult Counsel by its Professional Conduct and Complaints Committee. The Committee expressed concern that Paragraph 603(e), particularly in relation to areas of law where there are only a few specialist practitioners, gives rival litigants an unfair tactical opportunity to seek to "conflict out" the opposite side's Counsel.
The Panel recognises that the revised rule would require the existence rather than simply the appearance, of a conflict or risk of a conflict. The Panel considers that the current wording of Paragraph 603(e) is not sufficiently clear or concrete and is inconsistent with the CCBE Code of Conduct and the Law Society's Professional Rules.
General Principle 3.2 of the CCBE Code requires the existence, rather than simply the appearance of conflict. General Principle 3.2 refers to conflicts of interest in the following terms:
"3.2.1 A lawyer may not advise, represent or act on behalf of two or more clients in the same matter if there is a conflict, or a significant risk of a conflict between the interest of those clients.
3.2.2 A lawyer must cease to act for both clients when a conflict of interest arises between those clients and also whenever there is a breach of confidence or where his independence may be impaired.
3.2.3 A lawyer must also refrain from acting for a new client if there is a risk of a breach of confidentiality entrusted to the lawyer by a former client or if the knowledge which the lawyer possesses of the affairs of the former client would give an undue advantage to the new clients.
3.3.4 Where lawyers are practising in association, paragraph 3.2.1 to 3.2.3 above shall apply to the association and all its members."(Emphasis added)
The Panel also took account of section 15.01 of the Law Society's Professional Rules on conflict of interest, which states that, "A solicitor or firm of solicitors should not accept instructions to act for two or more clients where there is a conflict or a significant risk of a conflict between the interests of those clients". Section 15.06(a), which deals with a conflict arising from an office or appointment held by the solicitor himself (or an associate), similarly refers to "a conflict of interests or a significant risk of a conflict" arising. This wording materially differs from the conflict of interest provision contained in the existing Paragraph 603(e) of the Bar Council's Code of Conduct.
In addition to the benefit of bringing greater consistency between the regulations of the Bar Council, the Law Society and the CCBE, the Panel considers that the rule change proposed by the Bar Council will be helpful both to barristers in determining whether to refuse to accept a case on the grounds of conflict of interest, and to clients in preventing abuse of the present wider wording by opponents in litigation seeking to restrict their choice of counsel.
The Panel, therefore, advises the Lord Chancellor that he should approve the proposed change to Rule 603(e). However, the Panel also advises that greater clarity, as well as consistency with the regulations of the Law Society and the CCBE, would be achieved by the insertion of the word "significant" before "risk", and that the Lord Chancellor should make any approval of the Rule conditional thereon. The revised rule 603(e) should therefore read:
"(e) if there is a conflict or significant risk of conflict either between the interests of the barrister and some other person or between the interests of any one or more clients (unless all relevant persons consent to the barrister accepting the instructions);"
Although rule 603(f), which deals with the risk of a breach of client confidence, is not the subject of the present application, the Panel observes that for the sake of consistency there is a strong case for adding the word "significant" before "risk" in that rule. The Bar Council may wish to consider such an amendment.
• Conclusion
For the foregoing reasons the Panel advises the Lord Chancellor that the proposed rule change should be approved subject to the following condition:
that the word "significant" is inserted before "risk" in Paragraph 603(e).