A few thoughts on Judicial Conduct post-retirement

One of the hot topics of discussion in Bangladesh at the moment concerns the actions of judges post-retirement. As per our Constitution, a retired Justice of the High Court Division of the Supreme Court of Bangladesh may practise before the Appellate Division of the Supreme Court of Bangladesh but the question is whether it is ethical to do so, given the dignity of their position and the post-retirement benefits they enjoy.

The Bangalore Principles of Judicial Conduct (2002), the leading ‘soft law’ instrument on the issue, and Bangladesh’s Judicial Code of Conduct (2000) are silent on the rights and responsibilities of superannuated judges. It is also unclear whether their principles should simply extend to such judges. Perhaps, instead, it is worthwhile to look at the example of the UK and Australia in this regard:

Chapter 9 of the UK’s Judicial Conduct Guide (2013) states that: “9.1. The conditions of appointment to judicial office provide that judges accept appointment on the understanding that following the termination of their appointment they will not return to private practice as a barrister or a solicitor and will not provide services, on whatever basis, as an advocate in any court or tribunal in England and Wales or elsewhere, including any international court or tribunal, in return for remuneration of any kind, or offer or provide legal advice to any person. The terms of appointment accept that a former judge may provide services as an independent arbitrator/mediator and may receive remuneration for lectures, talks or articles.” Crucially, 9.2 adds: “Even in retirement a former judge may still be regarded by the general public as a representative of the judiciary and any activity that might tarnish the reputation of the judiciary should be avoided.” In my view, this would seem to extend many of the obligations under the Bangalore Principles to retired Judges.

In contrast, Australia’s Guide to Judicial Conduct (2007) is less explicit about what judges can and cannot do. Chapter 7.2.1 of the 2nd edition of this Guide states that a Judge (re-)joining the Bar “is a “grey area” in which it is not possible to formulate Australia-wide guidelines. A judge contemplating retirement should consult the Australian Bar Association, and the local Bar Association or Law Society for relevant rulings. All however proscribe appearance as counsel in a court of which the judge was formerly a member, for various periods ranging from two to five years.” Similarly, judges are allowed to engage in commercial and political activities subsequent to retirement but with the same caveat as the UK: “[e]ven in retirement…a former judge may still be regarded by the general public as a representative of the judiciary, and any activity that might tarnish the reputation of the judiciary should be avoided. “

I think this last guideline should also be incorporated in Bangladesh’s Judicial Code of Conduct, to emphasize the need for retired judges to be sensitive to their exalted status in society.

Morshed
the Hague

Holding Out as a ‘Barrister’ whilst conducting Foreign Work – A Personal Perspective

Recently, there has been considerable discussion about whether BPTC/BVC graduates, who have been called to the Bar of England & Wales by an Inn of Court but have not completed pupillage, can hold themselves out as ‘Barristers’ outside of England & Wales. (In particular, in Bangladesh) Prima facie, they cannot do so whilst providing legal services, as they do not have practicing certificates in the UK and may mislead their clients as a result. In fact, if an ‘unregistered barrister’ (as Barristers without practicing certificates are officially known in the Bar Standards Board [BSB] Handbook) provides restricted legal services, such as appearing before an English court, whilst holding themselves out as a Barrister, they may be charged with a criminal offence under s.12 of the Legal Services Act 2007.

However, my reading of the most recent version of the BSB Handbook (as amended in April 2015), allows limited scope for unregistered Barristers who practice exclusively outside of England & Wales, to hold themselves out as Barristers. rC144.1 of the BSB Handbook requires an unregistered barrister, who provides legal services, to inform their client that they are not acting in the capacity of a practicing Barrister (i.e. they can’t hold out as being a Barrister). rC145 provides certain exceptions to rC144 and effectively exempts certain categories of unregistered Barristers from the requirements of rC144 as well as a few other regulations under the BSB Handbook. These categories are set out in rS13-rS15. rS13 clarifies that if an unregistered barrister is practicing as a foreign lawyer and doesn’t give advice on English law or supply legal services in connection with proceedings in England and Wales, then rC144 does not apply to them. In other words, they are not strictly required to inform their clients that they are not acting in the capacity of a practicing Barrister, if they are, for instance, advising on Bangladeshi law or with regard to a Bangladeshi suit. Instead, they are bound by the Bar Council/Legal Professional Authority of the country that they are practicing in. (rC13)

I should add that the term ‘legal services’, in itself, has a restricted meaning. At the Definitions section of the BSB Handbook, it is stated that legal services doesn’t include sitting as an arbitrator or working as a law lecturer. Therefore, if an unregistered Barrister is not providing legal services and is working as a law lecturer, for example, they can still hold themselves out to be a Barrister.

To take a more purposive approach to these rules and guidelines – the BSB issued them with the purpose of not misleading clients. So, the question is, are Bangladeshi clients being misled by unregistered Barristers who hold themselves out as Barristers whilst practicing in Bangladesh?

I would argue that they are not.

The Bangladesh Legal Practitioners and Bar Council Order, 1972 does not define ‘Barrister’, though it is used as a term throughout the Order re: eligibility for enrollment as advocates, exemption from the pupillage requirement and so on. In practice, the only document supporting a candidate’s claim that he/she is a Barrister, that is required by the Bar Council at the time of enrollment, is an attested copy of the candidate’s Call to the Bar certificate. (The Bangladesh Legal Practitioners and Bar Council Rule, 1972, Rule 60(1) and the Form pursuant to it) He/she is not required to provide a copy of his/her UK practicing certificate or any other evidence that he/she has completed pupillage there.

At the end of the day, even with a ‘Barrister’ title, a lawyer is required to enroll as an Advocate with the Bangladesh Bar Council. So, in terms of rights and obligations towards Bangladeshi clients, both Barristers and Advocates are on the same boat.

[The views expressed in this post are strictly my own and does not constitute an authoritative reading of the BSB Handbook’s provisions]

Can In-House Counsel Keep Secrets? – Lessons from Europe (DRAFT)

In Bangladesh, when a dispute arises between two parties under civil law, the court by its own motion, or either party through an application, may compel the discovery of documents necessary for the subject matter of the proceedings (section 30, Code of Civil Procedure 1908). The documents a corporate party may be required to disclose could be everything from publicly available Annual Reports to sensitive financial documents, granted that they are not subject to confidentiality agreements or statutory protections. While the US is known for having the broadest scope of ‘discovery’, courts all across the globe have been known to order  the disclosure of a broad range of documents for the purpose of resolving a dispute. Traditionally, communication between lawyers and their clients have been a part of the subset of documents that have fallen outside of the scope of this discovery provision because of legal professional privilege.

Legal Professional Privilege protects a client’s communication with their lawyers from disclosure to third parties, thereby averting the possibility of self-incrimination. The cloak of confidentiality allows clients to speak to counsel candidly and counsel to provide unfettered legal advice. Such protection has existed for centuries in the common law (e.g. Berd v Lovelace [1577] Cary 62) and is uniquely tied to the status of law as an independent profession. Lawyers have enjoyed the privilege of confidentiality because, despite owing a duty to their client, they have been required to give frank, independent advice and to facilitate the administration of justice. (Bangladesh Bar Council Canons of Professional Conduct and Etiquette, Canons 10 and 12 of Chapter 2 read together) At arm’s length, a lawyer can render advice by considering both the interests of the client and of justice. In recent years, however, the exponential increase in lawyers becoming salaried employees of major companies has stirred debate regarding their ability to render independent professional judgment. This is because such lawyers not only become part of a corporate hierarchy but have sometimes become involved in commercial decision-making and dispensing non-legal advice. Courts have thus been confronted with the question of whether the privilege of confidentiality should extend to such non-legal communication and have generally held that it shouldn’t do so. (e.g. in Australia, Seven Network Ltd v News Ltd (2005) 225 ALR 672)

This should be of growing concern in Bangladesh as multinationals now have sizable legal departments and they may be required to disclose certain communications with management in open court in the event of a civil proceeding. The question of legal professional privilege viz. in-house counsel has not been explicitly considered by the Supreme Court of Bangladesh but the example of European Union (EU) jurisprudence may be informative. This is especially as many of the multinationals operating in Bangladesh are subsidiaries of European parent companies (e.g. Unilever, British American Tobacco). Therefore, I will first outline the current position regarding legal professional privilege in Bangladesh and the EU respectively before making recommendations on how communication between in-house counsel and the officers, directors and employees of a company can be kept confidential.

Bangladesh

In Bangladesh, communication between Advocates and their clients may enjoy the privilege of confidentiality under section 126 of the Evidence Act. However, such communication must have been made to him confidentially, in his capacity as an Advocate for the client, for privilege to attach to it. While the vast majority of in-house lawyers in Bangladesh have been enrolled as Advocates during their professional careers, the question arises as to whether their employment is in their capacity as an ‘Advocate’ or otherwise. The simple answer is that they are not. Pursuant to Canon 8 of Chapter 4, an Advocate should not, as a general rule, “…be a salaried official…in connection with any such profession or business.” Thus, while practicing as an Advocate, they cannot become a salaried employee of a company. Instead, a lawyer wishing to go in-house may suspend his practicing certificate under Rule 70, The Bangladesh Legal Practitioners and Bar Council Rules, 1972. A corporate lawyer is subject to codes of conduct/ethics that are set by companies for all of their employees, as well as the terms of their individual contracts which will generally include confidentiality clauses. (See British American Tobacco’s “Standards of Business Conduct” and S.S. Shroff, “In-house Counsel and the Attorney-Client Privilege” Lex Mundi (2007)) However, whether this contractual proviso means that client-counsel communication will be shielded from court-ordered disclosure is debatable, as the European example demonstrates.

The EU

The EU does not have a harmonized regime regarding confidentiality but in the AM & S v. European Commission case, the European Court of Justice (ECJ) held that confidentiality attaches to written communication between a lawyer and client, if the communication was made “for the purposes and in the interests of the client rights of defence” and they emanate from ‘independent lawyers’ (paragraph 21, p. 1611). This was re-affirmed more recently in the Akzo Nobel v. European Commission case. Thus, in-house lawyers’ communication is not protected by confidentiality because of their economic dependence on their client and their inability to avoid conflict between their own professional obligations and the commercial aims of their employers. Moreover, they may have duties that not strictly legal in nature. However, this restrictive approach to confidentiality only applies in cross-border, European Commission competition investigations. (DLA Piper, “European Union”, Legal Professional Privilege: Global Guide, 2015) Other disputes, including national competition proceedings, provide in-house counsel greater protection. In the UK, for example, both independent and in-house counsel communication attracts confidentiality, so long as the communication relates to the performance by the lawyer of his professional duty as legal adviser to his client (see Three Rivers District Council & Ors. v. Bank of England [2004] UKHL 48). Recent decisions in Belgium and the Netherlands indicate a similar trend. (Dirk Van Gerven and Freerk Vermeulen, “Legal advice of in-house counsel protected by duty of confidentiality” Lexology, 18 June 2013)

Ensuring Privilege

The lesson from this is that when courts consider the issue of privilege, they give greatest weight to the nature of the communication between in-house counsel and client rather than the lawyer’s formal, professional status. If the dominant purpose of the communication is to furnish legal advice, it will be protected, otherwise it will not. Thus, companies that seek to have their communication with their legal department protected should endeavor to strictly distinguish the department’s legal work from their involvement in other corporate activities. A range of measures may be taken to this effect, from annotating documents with ‘this communication is privileged based on attorney-client relationship’ to restricting the dissemination of such documents to granting the department greater autonomy within the company structure, so as to enable them to exercise independent professional judgment. It also goes without saying that the confidentiality of such communication should be preserved.

On the same note, it would be appreciated if the Bangladesh Bar Council issued a guidance note, clarifying whether, and to what extent, the Canons of Professional Conduct should extend to in-house lawyers.

Leiden
Morshed

A couple of weeks ago, on eBay, a woman listed an Ede & Ravenscroft barrister’s wig and gown for sale. “Condition: used,” she wrote. In the item description, she added: “After five years’ hard slog and penury, I (i.e. MasterCard) purchased this wig, gown and collar for about £650 at Ede and Rip-off. Reflecting the sorry state of my legal career, the wig was hardly worn, although a few hairs have been pulled out of place (as pictured), no doubt in frustration at the sorry state of life at the junior bar…If you… would like to try [the profession] out, the same can be achieved by running yourself about £35,000 into debt and arranging for someone to shout at you in public about cases you haven’t read because you only got about half the papers about 10 minutes ago. Cancel your social life… To get the full effect, spend copious amounts of time on trains and buses with periodic crying into laptop…I do not recommend you pursue a career at the bar unless you absolutely love the work so much that you are prepared to do it for nothing.”

Julia Llewellyn Smith in the Telegraph writes about the crises that the UK Criminal Bar is facing as a result of legal aid cuts, the empowerment of solicitor-advocates and the potential outsourcing of ‘legal aid contracts’ and criminal defence to the cheapest bidder; firms such as those set up by companies like Tesco or HGV hire firm Eddie Stobart. Such proposals, particularly outsourcing to the cheapest bidder, is deeply troubling since, as the Telegraph reports, “While until now defendants have been able to choose a lawyer, under the new proposals they will be assigned to the first available, regardless of whether they are experienced in that area of the law or not. Prosecutors, however, will be selected from a group of lawyers with expertise in the relevant area of the law, giving the prosecution an advantage from the outset. Firms will be paid the same whether they win or lose a case, meaning the pressure will be paramount to turn it around as quickly as possible, making it in their interests to persuade clients to plead guilty, whether that is in the client’s interest or not.”

One criticism, quoted in the article, echoes a sentiment that I hold about in-house counsel: “I don’t want to sound snobbish, maybe some of these people will be very good and try their best, but every barrister I know is worried that if they’re no longer self-employed, their motives will no longer be to try their best for their client, but to make a profit for their boss.

– Morshed,
Dhaka

Surviving Your First Advocacy Class: 5 tips

A blog, similar to mine, but from the perspective of a UK domestic student! Useful tips on Advocacy, the BPTC, etc. Do check it out.

– Morshed,
Dhaka

Confessions of a Bar student

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Know your case

I cannot stress enough the importance of ‘knowing your brief’. When you receive your papers for your very first advocacy class read them, and then read them again! Make sure you are familiar with the facts of the case. I would suggest making a chronology of the key dates and moments in the case to give you a clearer picture of your brief. Do not go to your advocacy session without reading the case! Nobody is expecting you to memorise the brief word for word, but you should know (1) what has happened, (2) who you are representing, (3) who are the key witnesses, (4) the evidence you have e.g. CCTV and (5) what you are asking the court for i.e. a bail application, plea in mitigation etc.

Know what you are going to say

Plan your submission and know the points you are going to make…

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Developments in Professional Ethics

It’s only been a month since I completed the BPTC myself yet there has already been a drastic change in the field of Professional Ethics. It seems that just like Criminal and Civil Litigation, the rules governing professional ethics in the UK change on a very regular basis, so it is important to keep abreast of these developments by regularly following the announcements of the Bar Council and the Bar Standards Board.

The Law Society Gazette has helpfully summarised the change to the ‘cab rank’ rule (a fundamental aspect of a Barristers’ professional ethics) in the article below:

“Bar victory over ‘cab rank’ rule

Thursday 02 August 2012
Changes to the ‘cab rank’ rule approved last week will pave the way for new standard contractual terms between solicitors and barristers.Under amendments to the Bar Standards Board’s code of conduct approved by the Legal Services Board, the cab rank rule will apply where work is offered to a barrister on the new contractual terms or any standard terms offered by the barrister. The cab rank rule will not apply to work offered by firms named on the List of Defaulting Solicitors, where a solicitor has not paid a barrister’s fees.”

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Morshed
Berlin