The Legal Services Act1 was established after a report in 2001 conducted by the Office of Fair Trading to sought out better ways to manage the legal services market. David Clementi was asked to conduct the review which was later published in December 2004. In his findings he concluded many issues with the way the legal section was operating.
The main recommendations were the creation of a Legal Services Board (LSB), Statutory objectives for the LSB and a new Office for Legal Complaints (OLC). Most of these recommendations were set out within the recent reforms to modernise and create an openness for the public. As many perceive law are daunting and complex but the government wanted to change these views. One such way they have done this is by allowing barristers and lawyers to not wear the formal attire within family courts. This will help make the legal system less complex and unnerving for the public.
The Legal Services Act has 8 main regulatory objectives that the regulatory bodies – Solicitors Regulatory Authority and the Bar Standards Board – have used to create their own set of core duties. These are as follows;
“(1) In this Act a reference to “the regulatory objectives” is a reference to the objectives of–
(a) protecting and promoting the public interest;
(b) supporting the constitutional principle of the rule of law;
(c) improving access to justice;
(d) protecting and promoting the interests of consumers;
(e) promoting competition in the provision of services within subsection (2);
(f) encouraging an independent, strong, diverse and effective legal profession;
(g) increasing public understanding of the citizen’s legal rights and duties;
(h) promoting and maintaining adherence to the professional principles.”2
These are all here from the government to give guidance to the regulatory bodies, to make their own codes based around these, to improve the legal sector.
In the book by Elliot Freidson3 he identifies three ‘logics’ for organising expert services. These are having perfect competition, corporate bureaucracy and professionalism. The objectives above are clearly aimed to achieve these three aims to manage and revamp the legal sector. The Bar Standard Board was a result of this legislation that was commenced in March 2008. The reason the government thought we needed regulation was that the legal sector was failing the public with many large and famous’ injustices like the Bridgewater four and Sally Clark. These famous cases caused a lot of uncertainty within the legal system of England and Wales. Consequently, the government decide it was time to improve the growing legal system, so it meant modern needs and the correct human ethics that is require practicing law.
The Bar Standard Board codes were created to regulate barristers and their professional conduct in England and Wales in the public interest. They are responsible for many of the following points;
– ‘Setting the education and training requirements for becoming a barrister;
– Setting continuing training requirements to ensure that barristers’ skills are maintained throughout their careers;
– Setting standards of conduct for barristers;
– Authorising organisations that focus on advocacy, litigation, and specialist legal advice;
– Monitoring the service provided by barristers and the organisations we authorise to assure quality;
– Handling complaints against barristers and the organisations we authorise and taking disciplinary or other action where appropriate.’
And recently they have “announced that they will seek to become licensing authorities”4 to those seeking to become a barrister.
Most of the Bar Standard Boards work is regulated by the Legal Services Act 2007 as well as other statutes. The legislation was important as it helps eliminates the idea of human nature and the temptation to be deceitful to gain more. This limits the greediness by making it against the law to inhibit these characteristics when practising law.
The rule of law is a legal maxim which states that no one is above the law. This concept encompasses basic freedoms like there being no arbitrary power. It was popularised by Albert Dicey, a former Oxford professor, and it is important as it ensures equality before the law no matter what position in life you are. This is one of the key regulatory objections5 and it’s important that this is upheld as it protects the individuals. Therefore, it is in the best interest of the barrister to help defend and uphold the rule of law as it helps them obtain justice and uphold the law. It is vital that this was part of the core duties as it’s one of the key constitutional points. You can find the rule of law in many of the different codes for instance; its found in 1 3
As a Barrister they have a duty to not mislead the court. This is stated as the first core duty in the Bar Standards Board. In case this means it’s one of the more important codes. A barrister does have a duty to the court and they must assist the court in the administration of justice. For example, if the barrister knows that their client had a previous criminal conviction, that they must disclose to the court but decide not to. if this happens, then, the barrister must then ask the judge to leave the case as they cannot continue to represent the client as the barrister isn’t able to fulfil his duty to the court. If the barristers decide to continue on this case and not tell the court about the conviction, then one of the core duties is not being correctly upheld. The Barrister cannot tell the court about the conviction because they have to act in with the client and cannot reveal things to the court the client wishes not to as ‘your duty to the court does not require you to act in breach of your duty to keep the affairs of each client confidential’6. The barrister knowing that the client has not informed the court of his criminal conviction can lead to a professional misconduct order which can result in fines or disbarment. This happened with Tammy McNally7 who represented herself and didn’t tell the court of her previous convictions.
A barrister having integrity involves having strong moral principles focused on being honest, fair and reliable. Integrity is important in any role, but it’s more important when clients are vulnerable and dependent on lawyers to deliver their rights. For barristers they cannot accept any gifts of reasonable size that may disrupt their integrity, for example a luxury watch. This is due to a barrister having to be fair to each client. As this gift may have either give the client a false pretence that the barrister will win the case of them as a return of the debt. Or the gift may compel the barrister to invest more time with this case than others. This again is another breach of the code of conduct as the lawyer isn’t acting fairly and within the realm of the code according to rC9.7. Another way a barrister can act without integrity is if they recklessly mislead a client. Again, this is another breaking of the code.
It is important that a barrister does act with honesty and integrity as they need to uphold the rule of law and it limits the amount of miscarriages of justice. And this is linked with objectives b and c which uphold the ‘constitutional principle of the rule of law’ and ‘improving access to justice’.
Barristers must serve each client faithfully, this is seen in CD4 where a barrister must ‘maintain your independence’ at all times. This means they cannot prioritise any other client over another. They occasionally may need to tell a client that they cannot carry out a particular action because its unethical and goes against the codes. This is another code that reflects objective (f) which encourages an ethical ‘independence’ which barristers should follow. A way a barrister can jeopardised their independence would be if they accepted referral money from a previous client. This may imply that the barrister has an allegiance towards the client as well as breaking the codes. This would diminish the public’s confidence in the legal system or bring the legal profession into disrepute.
It is illegal to discriminate anyone in the UK, this is because of the Equality Act8 which protects these ‘different characteristics’ of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion abd belief, sex and sexual orientation’9. A barrister therefore cannot legally refuse to represent someone to whom they have made their services available to as it’s a breach of CD8 in the Bar Standard Board. This is adherent in the Legal Services Act which aims to ‘increase the citizens legal rights and duties’10 and also this encourages a strong ‘diverse’ legal profession which is noted in objective (f) of the Legal Services Act. It’s important that a barrister doesn’t discriminate their client because it’s their job to uphold the law and therefore they must follow the laws.
The fact that a barrister cannot discriminate is linked with the cab rank rule. This rule is a rule that barristers follow which states that they must accept any work in field they practise in, at a court at their usual rates. The rule is from the tradition of the Hackney carriages that the driver at the front of the queue is meant to take the first passenger requesting a ride. The cab taxi rule is set out in the Bar Standards Board at rC29.
Without the taxi cab rule, an unpopular person, for instances a suspected serial killer, might not get legal representation. Or those who do represent him may be criticised for it. However, the cab rank rule has received criticism by the Law Society of England and Wales, which represents solicitors, questions whether ‘the cab-rank rule remains a necessary and proportionate rule for the Bar at a time when there is increasing competition for advocacy service’11.
A barrister would also like to avoid professional embarrassment when taking a case. There are many ways professional embarrassment may come about. One being if they may be a witness in the matter of the case. This would be embarrassing as the barrister could be defending the person they saw commit the crime and hence creates a conflict. Another way professional embarrassment could occur is if he had a personal connection with the client or a member of the court. This would cause an issue as it would be difficult for the barrister to maintain a professional independence or the administration of justice or appear to be prejudices. These are some of the real-life examples of why the codes are needed to regulate and control the industry to stop these human errors.
In conclusion, it is very clear that the Legal Services Act 2007 was a highly thought through and developed piece of legislation that has helped shaped the Bar Standard Board codes which have helped develop and improve the legal sector by opening up more to the public and allowing deserved change in a modern society like the anti-discrimination code. The Bar Standard Code helps improve the legal sector as a hold and with the Solicitors code is creates a set of rules that all lawyers have to follow in order to practice in England and Wales.