LAWFUEL – The Legal Newswire – From The Independent – By Robert Verkaik – Barristers are not usually quiet and retiring types. Yet when asked by a member of the press to express an opinion on a court case, the advocate is often struck strangely dumb.
The reason for this uncharacteristically reticence can be found in the Bar’s code of conduct, which stipulates that it is a disciplinary offence for a barrister to comment on a live court case in which he is acting.
Like many of the antiquated laws contained in the barristers’ code of conduct it is one that is observed as much in the breach as it is in observance. To my knowledge, only one lawyer in the last 10 years has been prosecuted by the profession for allegedly breaking this rule. The barrister in question was Peter Herbert and I was the journalist to whom he had been speaking about his case. Mr Herbert was rightly cleared at a disciplinary hearing presided over by a district judge, sitting as the panel chairman.
But the prosecution made a mockery of the rule because it showed how difficult it was to distinguish between opinion, which is banned, and a rehash of the evidence in the case, which is perfectly legal.
This is not the only example of a rule for barristers which is out of step with the rest of the professions. While complaints made against solicitors and doctors need only satisfy the standard of proof on a balance of probabilities, for a case to succeed against a barrister it must be proved beyond reasonable doubt. This is a much higher threshold for the prosecution to overcome, creating a perception that it is harder to find a barrister guilty of professional misconduct than it is to establish a case against a solicitor or a doctor.