THE PERILS OF PUBLIC STATEMENTS BY COUNSEL

The Perils of Public Statements by Counsel.

Patrick O’Connor Q.C.,

Associate tenant, Doughty Street Chambers.

[Author's own views, not those of Doughty Street Chambers]

Introduction. 

 In 1792, the great Thomas Erskine, defending Thomas Paine, expressed his personal opinion about the trial to the jury. In 1997, prosecution counsel in Trinidad told the jury that he had satisfied himself of the guilt of the accused before he accepted the brief. Erskine would be condemned today. The latter was, when the Privy Council quashed the conviction, [Ramdhanie v Trinidad [2006] 1 WLR 796.] The question is whether counsel should be allowed to express a personal opinion about their cases in public, when they cannot do so in court.

The History.

Before April, 2013, barristers were not allowed publicly '... to express a personal opinion..' about any of their anticipated, current or past cases. [para. 709.1 of the Code of Conduct]. This prohibition was founded upon the rule against 'advertising, touting and publicity' and upon the Bar's 'dignity'. The Bar Standards Board [BSB] then changed the Rule. Barristers are now allowed publicly to express a 'personal opinion' about their cases, exercising their 'freedom of expression', subject to their 'core duties' and certain 'guidance'. This article examines the history and content of the current rules, and the cautionary guidance issued by the BSB and the Bar Council [BC]. It will be suggested that this practice needs further clarification, and indeed basic re-consideration.

During the BSB consultation, little or no pressure for this change was cited. The 2nd consultation on the Code of Conduct, March, 2009, [para. 43] proposed keeping the prohibition. The general acceptance by the Bar was cited, and that it helped to prevent barristers being identified with their clients' causes. The Bar Council's Professional Practice Committee (BCPPC), the Criminal Bar Association (CBA) and others strongly supported this position, citing the risk of pressure from clients: damage to perception of the Bar's independence: and the risks of identification with the client's cause, of self-promotion and of a 'race to the bottom' with competitive 'media profiles'.

The BSB's final 'consultation feedback report' of 2011 stated that the prohibition would be removed and that 'guidance' would be more proportionate: [paras. 30- 38]. The reasoning was thin and misstated the ambit of the existing prohibition. 64% of consultees were said to be in favour of change. In the usual but unhelpful way, the collective positions of the BCPPC and the CBA, representing thousands of members, counted as one consultee each. No attributed response was cited supporting change. This 'freedom' was unwanted by the Bar. The general 'deregulation' agenda of the time seems to have held sway: a passing ideological fashion, now largely discredited. A more objective assessment of the 'public interest' and of the long-term future of our profession is necessary.

The current Rules and Guidance.

The Guidance in the BSB Code of Conduct on 'Media Comment', is founded upon a wide range of Core Duties, indicating the sensitivity of this issue: Duties 2 [promote lay client's best interests], 3 and 4 [not compromise own independence and integrity], 5 [not diminish public trust and confidence in you or the profession] and 6 [client confidentiality]. The latest version [v. 4.6, Guidance gC 22], provides that all the 'ethical obligations' of practice apply to 'media comment', and especially those above.

The BSB updated their 'Social Media Guidance' in October, 2019, which mentions the danger of being drawn into heated arguments, and the risks of unlawful discrimination or breaching client confidentiality. This does not seem to have been effective. The two complaints in year 2016/7 have now increased to 49 in 2020/21.

The Bar Council Ethics Committee gave updated 'advice' in November, 2020, applying to all expressions of barristers' personal opinions 'to or in the media', and especially about their cases. The full text can only be summarised here. [see: https://www.barcouncilethics.co.uk/documents/media-comment/]

No barrister is under a duty to make media statements, which fall outside the definition of a 'legal service' in Part 6 of the BSB Handbook. There is unlikely to be Bar Mutual insurance coverage for any resulting tort liability. The risks to the lay client's interests and of violating a relevant 'core duty' must be specifically assessed and discussed in all the circumstances. Liability for 'contempt of court' may arise.

The role of advocate is not to act as a mouthpiece, or to identify with the client's cause. 'Managing the media' as a litigation tactic should not be perceived as part of the service offered: nor should 'trial by media' be encouraged. Opinions expressed on social media create even greater dangers. An impression of 'self- promotion' may violate Core Duty 2.

Any expressed personal opinion "must be .. true, [and] honestly-held .." by the barrister. Particular problems arise if this is only partly supportive of the client's case. Later court room submissions may be compromised. The opinion may be refuted by later developments. Integrity may require a retraction or clarification. The interests, or lack of 'consent', of the client may stand in the way.

The International Bar Association [IBA], in May, 2014, produced similar 'International principles for social media conduct', but added that lawyers have a duty properly to understand any platform they are using to minimise mistakes. It is essential that lawyers' offices develop and maintain policy and training on social media use.

These texts present a formidable array of potential ethical and practical pitfalls. This has been sufficient to dissuade most barristers who are tempted in this direction.

Commentary.

The current Rules and Guidance do not represent the full range of risks to the public interest and of advisable protections for counsel. For example, and at its most basic, a duty to make a detailed record of all client discussions and of any consent should be emphasized, to minimise later complaints and litigation.

Outside the giving of advice, a barrister's personal opinions about the case are not normally discussed. However, the obligatory client discussions about proposed public statements would regularly include those opinions, which must be 'genuinely held'. This would risk damage to 'trust and confidence' and the dismissal of the lawyer. It is not in the public interest that such breakdowns should regularly occur, and certainly not shortly before any hearing.

Uninsured defamation liability, with costs, could bankrupt a barrister after a single verbal infelicity. Simply stating: “There is/was no credible evidence against my client” often implies that any prosecution witness is not credible, or may be lying. The reputational damage for the individual and for chambers from such litigation could be substantial. There is a risk of inadvertently revealing confidential information from the client, or the content of unused disclosed material. The latter may be a contempt of court or a criminal offence. [S. 17 and 18, Criminal Procedure and Investigation Act, 1996]

The exclusion of 'media comment' from the definition of a 'legal service’ [see above] casts doubt upon whether 'legal professional privilege' extends to this work: [see R ( Prudential plc) v SCIT [2013] UKSC 1]. Unless specific boundaries are maintained, chambers' records and computer systems could become more vulnerable to intrusive 'disclosure' exercises. Even if a barrister agrees simply to make 'public relations' statements, all the conduct of barristers, providing a 'legal service' or not, is subject to the Core Duties in the Code. The risk to perceived independence, and 'trust and confidence' in the profession, remains.

BC 'advice' suggests, correctly, that our 'integrity' requires the correction of any erroneous public statements. However no resolution is suggested, where this may damage the client's case, and/ or if consent is refused. Perhaps the client should be warned of this possibility and be required to consent in advance. Even a withdrawal from the case, without public correction, would still leave the error extant. Anyway, is there an overriding duty to correct any selective or misleading onward quotation?

It is understandably the wish of most clients that counsel's public statements should affect "public opinion" and the case outcome. What other purpose could there be? However, for the barrister, this is contrary to BC advice. Can counsel objectively further this aim of the client, but credibly disclaim any such intention? 'Motive' is not the same as 'intent'.

Even a single public statement creates the impression that 'managing the media' is part of the service counsel offers, contrary to BC advice? How can a later refusal to a different client be justified? Reliance upon counsel's personal opinion, would be a problematic and, for example, could trigger dismissal or complaints of discrimination. This is a slippery slope. Some years ago, one counsel's family was credibly threatened, after his refusal publicly to declare his client's innocence.

Again, after one such supportive statement, the Press could notice its absence for a different client. There could be public speculation as to the reasons. Before counsel is chosen, if this practice spreads, an unseemly auction of willingness to make public statements could take place: a 'race to the bottom'.

Counsel often have many ongoing clients in the same area of practice. Even if a statement of opinion on one issue concurs with the interests of the immediate client, it may directly conflict with the ongoing interests of a different client. How is counsel to balance these conflicting interests?

Without full transparency, a misleading public impression is likely to be left about the status of the barrister. Are they counsel for that client? Are they being paid for making the statement? Are they expressing their own genuine opinion? How is this information to be communicated? The reputational risk is high. The philosopher Roger Scruton wrote regular articles opposing restrictive tobacco legislation, apparently as an objective commentator. All reputable media dropped him from publication when his substantial payments from the tobacco lobby emerged.

This practice is likely to prove divisive for many chambers. More reluctant colleagues will face embarrassment in refusing. Statements in controversial and high profile cases, without the shield of the ‘cab rank rule’, could alienate the solicitor and lay-client base of colleagues. A negative collective policy provides a simple and inoffensive basis for refusal and protection for all. However, chambers are not generally adopting such policies.

Expressing personal opinions about cases, undermines an international norm which is a vital protection for the safety of our profession. This is expressed in para. 18 of the U.N. Basic Principles on the Role of Lawyers, 1990: “Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.” In the same year, the IBA adopted ‘IBA Standards for the independence of the legal profession.’ Para. 7 reads: “The lawyer is not to be identified by the authorities or the public with the client or the client’s cause, however popular or unpopular it may be."

A barrister's 'freedom of expression' is not any kind of trump card here. After accepting instructions, certain restrictions upon our conduct inevitably arise. It is then the client’s ‘freedom of expression’ that matters. That can normally be exercised in many ways and by many people, without requiring a barrister. Personal ‘freedom of expression’ about the case, can easily cloak 'personal promotion'.

The case law of the European Court of Human Rights confirms 'freedom of expression' for lawyers, under Article 10 of the Convention. In Morice v France, [23.4.15., no. 29369/10], the Grand Chamber struck down a fine against a French lawyer, and set out various principles at paras. 132- 9. A clear distinction is drawn between 'in court' and 'out of court statements'. Professional restraint is required. The decisions in Coutant v France, [24.1.08., Case no. 17155/03]: and Fuchs v Germany, [27.1.15., no. 28222/11 and 64345/11], involved challenges to criminal convictions of lawyers for making unfounded criticisms of the police publicly out of court, and of a prosecution expert even in court documents. They were dismissed as ‘manifestly ill founded’, and the convictions were upheld.

Two international instruments refer to lawyer's 'freedom of expression': para. 23 of the UN Basic Principles on the Role of Lawyers, 1990, and para. 14 of the IBA Standards for the Independence of the Legal Profession, 1990. Both refer generally to the rights of lawyers to take part in public discussion about legal affairs in a responsible manner. Neither refers to any 'right' to comment publicly upon their clients' cases.

There are exceptions

. Context matters, so that even the old prohibition allowed for comment ‘in an educational or academic context.’ International work, outside the jurisdiction of our courts, is a special case. A more public role by counsel may then sometimes be necessary. The different ethics in foreign jurisdictions cannot be covered here. However, at least Core Duties 3, 4 and 5 in the Code of Conduct apply here too, and following BSB and BC guidance and advice is advisable.

All is not lost. Perhaps there is a market opportunity for 'public relations' work, arising out of some barristers' practices, through a separate entity, linked to chambers. The boundaries of counsel's 'legal services' would be clear and their personal opinions would not enter the picture. Clients requesting this service can be referred across to media-trained specialists. Independent computer systems would protect the LPP of chambers' material. Some protection against 'cause identification' would be provided.

Conclusion.

Few barristers have indulged in this 'freedom', reflecting the strong 'guidance' and wariness of the inevitable perils. However, these occasions tend to cause controversy and complaint. 'Public relations' is a powerful industry, and 'reputation management' now often surrounds the higher-profile litigation. A stately 'pas de deux' of clients leaving court with robed counsel seems now to be trending: an image of implied loyalty for the (entirely coincidental) press cameras. It will only take a few prominent practitioners to opine publicly, and client expectations will grow. What is to stop counsel on the court steps, publicly 'spinning' the events of the day? The temptations for counsel to win work by satisfying the expanding demands of clients, and to promote their own 'media profile', are considerable. Is this a direction which is desirable for our profession? An assessment of these developments is necessary.

The personal 'freedom of expression' of barristers on legal and other issues, as informed, and sometimes expert, citizens, must be protected. They can educate, demystify the law and highlight injustice. However, when instructed as counsel, restraint is required. Objectively, there can hardly ever be a need for counsel to make such public statements of opinion. The present regime, which is permissive of them, but at the same time prohibits their inevitable purposes and effects, is fundamentally contradictory. It is understandable that some clients would prefer to deploy the status of a barrister's personal opinion: but that is to exploit that status, the better to influence public opinion and the case outcome. This is a prohibited purpose for the barrister. Perhaps this 'liberalisation' should be re-examined in principle.

Famously, some years ago, a Lord Chief Justice cut short the argument of leading counsel, saying: "I seem to have read your submissions already in the Times this morning." The client's case was not assisted.

c. Patrick O'Connor Q.C.