There is an increasing tendency to insinuate that the personal beliefs of lawyers are somehow relevant to the way they conduct their cases. This is troubling because if true, confidence in in our adversarial system of justice would suffer a serious knock.
The Charlie Gard case is the latest example. It is disappointing that there has been criticism of barristers who were instructed in the case by reference to their supposed personal beliefs. As with all cases conducted by professional lawyers, the private opinions of those who acted for the parents, the hospital or for Charlie himself, could not and did not play any part in the proceedings.
It is of course wrong to suppose that a lawyer must share the opinion of the client. It is equally wrong to think that a lawyer will allow any personally-held views, moral or otherwise, to interfere with the professional obligation to advance the client’s case and the evidence which supports it. In short, it is pretty elementary to the way we do justice that the personal beliefs of a lawyer are neither here nor there.
All this is illustrated by the fact that barristers are regularly instructed to present or argue a case from the opposite perspective to one they have just finished, notwithstanding that the two cases raise very similar issues.
Indeed a barrister’s professional code requires them to accept instructions to act in cases in which they have the necessary expertise and seniority, irrespective of the identity of the client, the nature of the case, and any belief or opinion which they may have formed as to the client’s cause. This rule, the so-called ‘cab rank’ rule, is critical in defending barristers who are attacked by those who in ignorance believe that they can somehow associate the cause of the client with the identity of the barrister arguing the case, on the false assumption that if the barrister was unsympathetic to the client’s cause, they would not have accepted the brief.
There are at least three reasons why we should keep it that way. First, for the sake of citizens who want access to the best representation, however unpopular their case may seem. If no-one could get a barrister to take on an unpopular case, prejudice (pre-judging) of the cause will have taken hold, risking injustice. Second, for the sake of lawyers who are protected from vitriol and threats by the very fact that they are not allowed to refuse a case on the basis that they find that side of the argument distasteful. Third, for the sake of getting the right result and so achieving justice. If you do not have high quality barristers arguing for each side, because one side is ‘unpopular’, then you do not have a proper contest of the opposing arguments, and so are less likely always to get the right result.
Newspapers or politicians who know all this, but choose nonetheless to personalise the role of lawyers, presumably do so in order to court cheap publicity. What is not cheap is the cost to the reputation of our justice system, and the personal price paid by professionals who are thereby exposed to threats and vilification for having done no more than discharge their professional duty.
Andrew Langdon QC, Chair, Bar of England and Wales.