Ethical dilemmas

A pupil rushed into the clerks room today with a look of blind panic. “What do I do? Ridiculously, I accidentally emailed my written advice to the other side’s solicitor who I also do a lot of work for. Should I call them up and tell them not to read it?”

“All I’d say,” said BusyBody, “is don’t listen to OldSmoothie.”

“Why’s that?” asked OldSmoothie. “Because I give such good practical advice?”

“Because you’re a lazy, corrupt old fool,” came the reply.

“Go on then, test me. See where I stand on your ethics-ometer.”

“Well, let’s start with the problem at hand. What would you do?”

“Absolutely nothing at all. Just sit tight and hope for the best. I mean, how can you be absolutely sure that you mis-sent the email in any event?”

“Because you’d check your sent emails.”

“All the more reason just to sit tight and do nothing then. Come on, give me a harder one.”

“Let’s say someone asked your informal advice on a case in chambers and then you suddenly realise the next day that it was actually about a case in which you’re representing the other side. What would you do then?”

“Absolutely nothing at all. Just sit tight and hope for the best. Again, how can you be absolutely one hundred per cent sure that it was about that case unless you were to check.”

“By checking.”

“Exactly my point. Come on, still too easy.”

“What if there’s an offer to settle your case miles below what it’s worth but you’re on a no-win no-fee agreement?”

“Easy again. It’s called litigation risk. Always a good reason to settle. Come on.”

“What if a barrister on the other side tells you something and claims counsel to counsel privilege.”

“Okay, call me a fat, lazy old fool and I’ll admit that I don’t know whether I’m right or wrong on the other examples. But this one is something that always gets my goat with self-righteous young barrister upstarts. Whenever they start claiming counsel to counsel privilege, simply point out that in this country at least, there is no such thing. For your part, you’re bound to inform your client and for their part they shouldn’t even be telling you anything unless they have the client’s say so. This much, young lady, I know.”

BabyBarista is a fictional account of a junior barrister written by Tim Kevan whose new novel is Law and Peace. For more information visit and to read past posts visit Cartoons by Alex Williams, author of 101 Ways to Leave the Law.

October 22, 2013 · Tim Kevan · Comments Closed
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