A claim has been started, concerning the ownership of shares in a business. The Claimants are brother and sister, Mr Leo Gardiner and Miss Teresa Gardiner. The Defendants are other family members. You represent the Claimants at an interim directions hearing. Just before the hearing, the Defendants make an offer of settlement which is much lower than the sum that you advise the Claimants they are likely to obtain at trial. The Claimants tell you that they will not accept the offer. However, during the interim hearing, the Judge directs that all parties should disclose their personal financial affairs over the previous three years to help the Court to decide the ownership of the business.
After the hearing, you tell the Claimants that they should expect their personal financial affairs to be disclosed in open Court and advise them that disclosure is necessary in order to succeed in their claim. Miss Gardiner immediately says that she has changed her mind and she would like to accept the offer which was made before the hearing, explaining “I don’t want my private affairs dragged through the Court”. Mr Gardiner says that she is being ridiculous, this is a direction that they all have to comply with and he is not prepared to accept the offer.
Please answer the following questions, giving full reasons for your answer in each case.
(a) Can you continue to act for both clients in these circumstances and what are the ethical issues that arise in coming to a decision on this point?
(b) In what circumstances could you agree to a settlement this morning?
Half an hour later, Defence Counsel, Mr Forthright, asks to speak to you privately. You agree. He advises you to persuade the Claimants to accept the Defendants’ offer or, he says, “Things could get pretty unpleasant” for the Claimants. You tell him that you need more time to take instructions. He then accuses you of “deliberately prolonging the litigation in order to increase your brief fee.”
(c) Is Mr Forthright in breach of the Code of Conduct or any other guidance provided by the Bar Standards Board and, if so, describe how?
(d) What action could you take in response to his recommendation and how should you behave in this situation? Consider any practical solutions to Mr Forthright’s behaviour.
(e) How, if at all, would your answers to (c) and (d) above be different if Mr Forthright had spoken to you in a raised voice in the Court lobby in front of members of the public who were likely to have heard him?
(10 marks in total)
(a) Where there is, or appears to be, a conflict or risk of conflict
between the interests of any one or more clients, (1 mark)
The barrister should withdraw
. (1 mark)
Unless all relevant persons (Mr and Miss Gardiner) consent
to the barrister accepting the instructions. (1 mark)
You must not cease to act or return your instructions without having first explained to the client your reason for doing so.
You can continue to act for both clients if one of them changes their instructions
so that they are in agreement, either to settle today or to fight the case. (1 mark)
(b) You can agree to a settlement this morning if both clients wish to do this. 603(e) (1 mark)
(c) Mr Forthright’s approach is a breach of the Code of Conduct, “A barrister must in all his professional dealings be courteous
”. (1 mark)
And of the Written Standards “A barrister must at all times be courteous to the Court
and to all those with whom he has professional dealings.” (1 mark)
(d) You could explain to Mr Forthright that his suggestion is unethical
and sounds like a threat
. (1 mark)
You could state that your clients will make the decision
as to whether to accept the other side’s offer. (1 mark)
You should stay calm
(1 mark) and polite
. (1 mark)
You should avoid allowing the atmosphere to escalate
. (1 mark)
You could report
Mr Forthright’s attitude to the Bar Standards Board. (1 mark) Or his Chambers. (1 mark)
- (e) In this case Mr Forthright’s conduct would be:
- discreditable to a barrister (1 mark) likely to diminish public confidence in the legal profession (1 mark) or the administration of justice (1 mark) or otherwise bring the legal profession into disrepute (1 mark).
You could therefore make a complaint
concerning Mr Forthright’s behaviour to the Bar Standards Board
. (1 mark)