A couple of notes from the weekend.
I’ve updated the downloadable PDF files for homelessness and possession posts to include 2014 to now. I’ve also added all disrepair posts from 2006 to now as a new file (it is a hefty 214 page PDF, but fully searchable). As ever, these are unedited, unindexed posts, though in date order – this is because they are free and editing and indexing would take a lot of time. But offline, searchable subject archives may be useful for people.
A rather less productive use of my weekend was arguing on twitter with the former MP, John Hemming, about various things, including his views about joint experts. When those view were advanced by Mr Hemming in a Court of Appeal hearing in 2008, the judgment recorded variously:
Even more unarguable – indeed it is outrageous – is Mr Hemming’s allegation that HJ was the paid expert of the local authority. She was nothing of the kind. Such an allegation is not only without any evidential foundation of any kind: it is plainly contradicted by the evidence.
Mr. Hemming’s allegation that HJ is part of an “evil” system only warrants comment because it comes from a Member of Parliament, and thus from a person in a responsible public position whom one ought to be able to trust only to make serious accusations when they are based on evidence. I am astonished that somebody in Mr. Hemming’s position should have seen fit to put such a disgraceful allegation into the public domain. I reject it unreservedly.
In my judgment, the arguments advanced by Mr Hemming in this case are ill-informed and tendentious. They are contradicted by the evidence, and must be rejected. I think this most unfortunate.
Mr Hemming remains undeterred from making accusations without any evidence, indeed he is still making the same accusation about joint experts.
But today’s fresh accusation was that any lawyer (solicitor or barrister) who acted for a local authority on a case would then be in a conflict of interest position if they subsequently acted for someone else against the local authority, unless with specific informed consent of all of the parties.
Yes, really. Here is Mr Hemming’s explanation, based on a ‘reading’ of Bar Standards Board Code (and the SRA Code).
I had done my best to explain why this was wrong, even as he groped his way to grasping the wrong end of the stick, but to no avail. Of course, this means that Mr Hemming’s post is inaccurate from the very first line. He wasn’t discussing conflict of interest with family barristers, but with a housing solicitor
So, it appear there is a need to explain to Mr Hemming, preferably in words of limited syllables.
If there is a conflict, or a significant risk of a conflict, between two or more current clients, you must not act for all or both of them unless the matter falls within the scope of the limited exceptions set out at Outcomes 3.6 or 3.7. In deciding whether to act in these limited circumstances, the overriding consideration will be the best interests of each of the clients concerned and, in particular, whether the benefits to the clients of you acting for all or both of the clients outweigh the risks.
The SRA defines ‘client conflict’ as
for the purposes of Chapter 3 of the SRA Code of Conduct, means any situation where you owe separate duties to act in the best interests of two or more clients in relation to the same or related matters, and those duties conflict, or there is a significant risk that those duties may conflict.
Mr Hemming appears to believe this covers acting against a former client that you have previously acted for. Now I would happily agree that it does in certain specific circumstances, such as where one had privileged information about the former client which was relevant to the prospective new matter. The ongoing duty of confidentiality to the former client would be in clear conflict with the duty to act in the best interests of the new client (SRA outcomes 4.3 and 4.4, if you were wondering)
The BSB rules are not wholly dissimilar. At RC 21.3 You must not accept instructions to act in a particular matter if:
there is a conflict of interest between the prospective client and one or more of your former or existing clients in respect of the particular matter unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances;
Now Mr Hemming relies entirely on the following interpretation of ‘the particular matter’:
If, therefore, we consider the case of a barrister considering whether they should accept instructions to act for a parent Mr Smith against the Huntingdonshire County Council. This particular barrister had earlier acted for Huntingdonshire against Mr & Mrs Jones.
It is clear that Huntingdonshire is either a former or existing client. It is also clear that there is a conflict of interest between Mr Smith and Huntingdonshire in the “particular matter”.
A moment’s thought is sufficient to dispose of this. In Mr Hemming’s example, he confuses the Council’s general interests in pursuing cases with their interest in a ‘particular matter’. There is nothing ‘particular’ about the proceedings in his example, no suggestion that the cases of Smith and Jones are interrelated, or that the barrister might have obtained privileged information from the council in the case of Smith that would have any bearing on the case of Jones.
Simply being instructed on the other side to a former client in an unrelated matter is not a conflict of interest ‘in respect of the particular matter’ where there is no ongoing duty to the former client (of confidentiality, or where matters overlap).
The SRA rules are perfectly clear on this, which Mr Hemming manages to overlook – conflict only arises where there are ‘overlapping duties’ or an ongoing duty of confidentiality. In Mr Hemming’s example, there are no overlapping duties and no relevant confidential information.
If an LA is trying to take a child off your (prospective) client then that is a conflict of interest. Keep up at the back.
— John Hemming (@johnhemming4mp) May 15, 2016
Given that Mr Hemming’s shall we say tendentious and somewhat tinfoil hatted reading of the BSB code would mean that no barrister could ever act in a matter against a previous client without that previous client’s consent, it would, of course, mean the end of the Bar, at least certainly the family or criminal Bar. Mr Hemming extends his reading to solicitors, without actually reading the SRA code which itself gives the lie to his assertion.
Why is this important? Why pay attention to the ramblings of a former MP whose credibility has been demolished by the Courts? Because a lot of desperate and unhappy people do pay attention to him. His advice, including recommending to parents fleeing abroad to frustrate care proceedings, has been acted upon by people. If Mr Hemming now suggests trying to challenge lawyers on the erroneous basis of conflict of interest, or worse, that people should consider a prospective lawyer to be tainted with conflict of interest if they have ever acted for the other side, he is damaging people’s interests, stupidly and unnecessarily.
For a good riposte on the merits of a lawyer acting for different parties at different times, Lucy Reed at Pink Tape sums it all up.