Summary
5.168 A barrister in full time employment is not allowed to represent his/her employer in court.225 This means that a
firm or organisation requiring legal representation in court must engage the services of another barrister. 5.169 The restriction preventing employed barristers from practising in court reduces choice and competition in the
market for legal services. The restriction further has an impact on all potential clients by effectively reducing the supply of available barristers. Individual firms or organisations are denied the option of choosing their
employed barrister to represent them. In addition once the independent barrister is hired he or she is unavailable to other potential clients.
5.170 The restriction is also disproportionate. The Bar Council has stated that employed barristers face a conflict of interest, to the court on the one hand and to their employer on the other. The Bar Council’s concerns about possible conflicts of interest for employed barristers are legitimate and important but do not require that all employed barristers must never practice in court. In addition there is no similar rule regarding solicitors, i.e., while an employed barrister cannot represent their employer in court an employed solicitor is not precluded from doing so.
Nature of restraint
5.171 Three rules of the Bar’s Code of Conduct when taken together have the effect of prohibiting a barrister in full-time employment from practising at the Bar, even if such a barrister’s only client is his/her employer.226
Effects of restraint
5.172 This restriction creates a potential extra cost for a barrister’s employer who is engaged in litigation. The employer must engage a barrister who is in practice at the Bar to represent him/her in court, even if the employer’s preference would be representation by the employed “in-house” barrister.
5.173 The restriction removes a competitive constraint on independent barristers by preventing the option of supply from businesses or other organisations which employ in-house barristers. At present, such bodies are obliged to out-source the work of legal representation in court.
5.174 There is, however, one exception to the restriction on businesses or organisations wishing to be represented by an employee. Whereas employed barristers are precluded from practising in court an employed solicitor is able to do so.
Rationale offered for restraint
5.175 The Bar Council submits that the restriction is necessary to preserve the integrity of the independent referral bar:
“Employed barristers are frequently in a position of conflict of interest. On the one hand, they owe a duty as an employee to obey the instructions of their employer. On the other hand, they are bound by a duty of disclosure to the court, including a duty to disclose relevant legal authorities to the court. […] Put simply, such a situation contains an inherent conflict of interest which threatens the discharge of a barrister’s duty to the court. It is not an uncommon complaint of a client and sometimes a solicitor that a barrister has revealed an aspect of law, a rule of procedure or a feature of their case to the court which is unfavourable.”227
228 Rule 501 of the Code of Conduct of the Bar of England and Wales provides as follows: An employed barrister whilst acting in the course of his
employment may supply legal services to his employer and to any of the following persons: (a) any employee, director or company secretary of the employer in a matter arising out of or relating to that person’s employment; (b) where the employer is a public authority (including the Crown or a Government department or agency or a local authority):(i) another public authority on behalf of which the employer has made arrangements under statute or otherwise to supply any legal services or to perform any of that other public authority’s functions as agent or otherwise; (ii) in the case of a barrister employed by or in a Government department or agency, any Minister or Officer of the Crown.
229 Section 26 of the Code of Conduct for the Bar of Northern Ireland
International Experience
5.176 In England and Wales an employed barrister may supply legal services (defined to include representation in court) to his employer.228
5.177 In Northern Ireland an employed barrister may represent his or her employer in court but not a third party.229
5.178 In NSW, Queensland, Victoria, and Scotland a barrister in full time employment is not permitted to practice at the Bar.
Views of Interested Parties
5.179 Both the Irish Insurance Federation and the Self Insured Taskforce support the proposition that barristers be permitted to represent their employers in court. Both organisations stress that their members have ongoing legal needs and should be permitted to use in-house employed barristers to represent them in court. The prohibition results in their members having to outsource, at considerable additional cost, barrister services. The Self Insured Taskforce believes there is no conflict of interest in barristers representing their employers and point out that in-house solicitors can and do represent their employers in court.
Analysis of the Competition Authority
5.180 Prohibiting qualified barristers from representing their employers in court has the effect of restricting competition in the market for barrister services in the State. If allowed, the use of in-house barristers would effectively increase supply, constrain barristers’ ability to raise prices and also sharpen the incentive for barristers to provide good quality service. Allowing in-house barristers to practice in court would establish a credible threat of switching to self-supply if the firm or organisation considered that an external barrister’s fees were too high. This would benefit all consumers of legal services. If the option of using an in-house barrister was permitted, even those organisations who, in general, preferred to outsource advocacy services might reconsider if barristers’ fees began to rise.
5.181 The Bar Council’s concerns about the conflict of interest posed to an employed barrister by his/her duty to the court on the one hand and to his/her employer on the other, are real concerns. However, they do not justify a total ban on employed barristers practising in court.
5.182 First, as the international experience above shows, barristers in England and Wales are allowed to represent employers without evident detrimental effect upon barristers’ independence and duty to the court.
5.183 Second, in Ireland solicitors in employment are entitled to represent their employers at all stages of legal proceedings. While it is not common for such solicitors to represent their employers in the higher courts, there is nothing preventing them from doing so. Solicitors regularly represent their employers in the District Court. 5.184 Third, the potential conflict of interest pointed out by the Bar Council does not only arise when the steps of the
court have been crossed. The same conflict can arise in preparing for litigation, yet in-house barristers are regularly involved with this stage of the work, with no evident general detrimental effect to the administration of justice. 5.185 Finally, if the prohibition were lifted, steps could be taken to ensure so far as is possible that the Bar’s ethical
standards were met. This could be done by redefining “barrister” in Rule 1.7(a) of the Code of Conduct to include employed barristers, who would then become subject to the Bar’s Code of Conduct and its disciplinary procedures. An employed barrister could be obliged, for example, to inform his employer that he was bound by certain ethical standards and obligations of disclosure.
5.186 The potential conflict of interest described by the Bar Council is not unique to barristers. Other professionals also face the potential for a conflict between duties to employers and professional obligations. For example, actuaries employed by life assurance companies have statutory obligations which may be inconvenient to their employers.
5.187 Furthermore, any employee can be confronted with dilemmas concerning compliance with rules or laws where this may not be in the immediate interest of their employer. Common examples include compliance with health and safety legislation or legislation governing the sale of goods and services. Addressing these problems does not require that only independent sole contractors should be allowed to supply the market.230
Solution
5.188 The Bar should extend recognition of practising barristers to include employed barristers in order to remove the restrictions on employed barristers representing their employer in court. This would be achieved by amending Rules 2.6, 2.7 and 8.3 of the Code of Conduct for the Bar of Ireland. Allowing employed barristers to represent their employers in court would increase choice and competition in barristers’ services and be consistent with the regulation of employed solicitors.
Recommendation 13:
Allow employed barristers to represent their employers in court
Details of Recommendation Action By
The Bar Council should propose to the Bar of Ireland, the The Bar Council amending of Rules 2.6, 2.7 and 8.3 of the Code of Conduct of
the Bar of Ireland to allow barristers in employment to represent December 2007 their employers in court.