All in the line of duty

All advocates' duty to the court comes before their duty to their employers - and new rules are needed to emphasise this, writes Patrick Walker

As solicitor-advocates celebrate being accepted by the legal system, all advocates face a challenge - keeping their independence.The recent fourth annual conference of the Solicitors Association of Higher Court Advocates celebrated the integration of solicitor-advocates.Old misconceptions and prejudices are being swept aside by a new generation of judges with little interest in robes or whether an advocate is a solicitor or barrister, but with a healthy interest in getting the job done.The association's chairman has stressed the importance of the professions working together, and few can disagree (see [2001] Gazette, 27 September, 16).

The duty to clients and to the court demands it.

But that duty also requires a high degree of independence, and in the face of ever-increasing commercial pressures, all advocates must question whether they are able to make the grade.Neither profession can afford any complacency.

Barristers in chambers have long traded on the 'independent' tag, but for many the commercial pressures associated with conditional fee agreements or simply 'upsetting the client' are very real.

The advice given to the bar to use the term 'self-employed' rather than 'independent' is welcome recognition that those in chambers do not have a monopoly on the integrity required to present a case 'fearlessly and independently'.But those in employment - both barristers and solicitors - face real pressures too.

It would be easy for advocates to lose the respect which most courts have offered them if clear steps are not taken to preserve independence and protect against the pressures imposed by clients who neither understand nor care about the rules of evidence or advocates' duties to the court.The better employers will ensure that an advocate will never suffer financially or in terms of promotion when a case is lost because of his integrity in fulfilling his duty to the court.

In so doing, they arguably make it easier for junior advocates to be independent than for self-employed advocates.But how many employers have such protection? In some quarters there is the perception that parts of the public and private sectors are staffed by advocates who must bow before their employers rather than before the court.

Employers who compromise advocates do neither their organisation nor their clients any favours.

One incident of sharp practice can undo years of hard work and destroy trust.The bar is already considering what additional rules can be imposed to safeguard the independence of employed barristers.

It may also wish to ask what can be done to remove excessive financial pressures from the self-employed bar, particularly at the very junior level.

Those celebrating the newly found and hard-won status of solicitor-advocates could do well to review the existing Law Society rules, and to question whether the time has come to impose on employers an obligation to include in every contract of employment a provision that the advocate's duty to his employer is subordinate to his duty to the court.

All advocates should be in this position already, but it would do no harm to spell it out.Amending the contract of employment is not enough by itself.

Advocates must be protected against financial pressures from management, and managers must understand and respect advocates' duties to the court.

This is as much a matter for education as regulation - and it cannot start too soon.Perhaps there are those among the self-employed bar who doubt whether employed advocates can ever attain the same high standards.

In fairness, many employed barristers and solicitor-advocates are sailing uncharted waters, and doubtless we have much to learn.

But perhaps there is room for a two-way learning process and recognition by all advocates that we should work closely together not only for the good of our clients, but to maintain the 'fearless and independent' profession which we all so value.

By such close co-operation, all advocates work towards a real declaration of independence, and leave behind the divisions of the past.Patrick Walker is director for advocacy at City-based law firm Hammond Suddards Edge