Year of the Code: the changing role of the barrister
It might be thought there is an inherent tension between the role of a barrister and the obligation in Resolution’s Code of Practice to “Reduce or manage any conflict and confrontation; for example, by not using inflammatory language”. The adversarial nature of our system of justice is said to be one of its defining features – two or more opposing parties engaging in a battle to convince the passive judge (and sometimes jury) that their version of the facts is true. Is it not also a cornerstone of the barristers’ profession? The duty under the Bar Standards Board’s Code of Conduct to act in the best interests of each lay client includes an obligation that we must “promote fearlessly” the client’s best interests without regard to our own interests, any consequences to us, and “without regard to the consequences to any other person”. Doesn’t this require conflict and confrontation without consideration of its impact on others?
This was probably never in fact true of family law. However, if it ever was, it is not true now.
The role of the family barrister has changed beyond recognition for many of us in recent years. There once may have been only periodic contact with a lay client – sometimes meeting them for the first and only time in a hurried pre-hearing conference at court, giving advice and taking instructions while trying to be heard over the court tannoy and being told by a harried usher that the judge is waiting impatiently – and only ever seeing their former partner across the court room. There was no time in such a pressurised environment to consider the wider family dynamics. It was purely transactional.
Building a relationship with a lay client was also not assisted by the fact that (for obvious and understandable reasons) we are not permitted to speak to our lay clients before or after the court day or over lunch if they are in the middle of giving their evidence (although for some being only able to say “see you tomorrow at 10.25 am” is a professional perk).
However, we are now mediators, arbitrators, collaborative lawyers and early neutral evaluators in both finance and children cases. We are instructed in the ‘One Couple, One Lawyer’ model. In all of these situations we not only see the former partner, but we act for them too. We spend time with them both in a less alien environment than the corridor of a court building. As a result, we see the impact of what we say and how we say it on both parties. In mediation, the collaborative process, and in the early neutral evaluation setting we need to listen and not broadcast. We seek to reduce tension and identify common ground. We propose solutions in a balanced and even-handed way and emphasise the benefits of a consensual resolution. We seek to persuade. Even in arbitration, the NCDR option most aligned with the court process, we encourage parties to reach as much agreement as they can, deciding only what we are asked to decide and when. In all of these roles we seek to reduce or manage conflict and confrontation. Tone and content matter.
We may also draft correspondence – both for solicitors and, for those who are direct access trained, for clients. Here we fulfil a different role but again we consider the consequences of our actions: always alive to the reminder in the FPR pre-application finance and children protocols that any correspondence which raises irrelevant issues, or which might cause the other party to adopt an entrenched, polarised or hostile position is to be discouraged, and conscious of how the letter will be received by the person to whom it is sent. Again, tone and content matter.
So the family barrister’s role has evolved over the years to one that aligns well with Resolution’s Code of Practice. All of us who are members of Resolution are proud to be part of a community of family justice professionals who sign up to what the Code represents: working with families and individuals to resolve issues in a constructive and non-confrontational way, alive to our responsibilities and the consequences of our actions. For many of us it is perhaps at the heart of what we do.