Legal Opinion: A wake-up call for the barristers' profession

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.

Barristers are now being given the chance to vote themselves into the modern world with a new code of conduct that will reflect the rapidly changing legal landscape. The Bar Standards Board (BSB), which regulates nearly 15,000 barristers in England and Wales, has published its consultation paper unveiling a comprehensive review of the Bar's code of conduct.

Among the initial proposals is an end to the rule on comment, a lowering of the standard of proof and also the end to the ban on barristers being able to advertise themselves on the basis of how many cases they have won.

The last proposal will appeal to many barristers who have for a long time felt that it is unfair that there is no standard empirical means of measuring their success in court. Others will argue that it raises the prospect of league tables of performance which will cheapen the true value of advocacy while at the same encourage barristers to only accept winnable cases. Nevertheless it is worth noting that for many year surgeons have been exposed to the crude comparisons of death-rate league tables.

The review is part of the BSB's three-year strategy, published in November 2006, and has been triggered by the need to ensure that the rules provide a competitive framework for the provision of barristers' services which both protects the public interest, and reflects the changing landscape for the supply of legal services anticipated by the Legal Services Bill.

While there are many advocates who will recognise this opportunity as a life-line thrown to the profession, there are others who will no doubt see it as an unwelcome challenge to centuries-old working practices of the Bar.

r.verkaik@independent.co.uk