Thursday, 25 February 2010

Conduct of Lawyers

It is possibly a little known fact that by section 33(2) of the Supreme Court Act all rules of conduct of the Bar Council and Law Society of England and Wales apply to barristers and solicitors in Gibraltar. All lawyers in Gibraltar, whether trained as barristers or solicitors in England and Wales, are called and admitted in Gibraltar and may practice as both barristers and solicitors.

At one time there was a debate amongst lawyers as to which code applied to whom. The Bar Council at least 10 years ago clarified this in a circular sent to all lawyers. The circular made clear that, to the extent that a lawyer was acting in a capacity not covered by one code, then the provisions of the other code would apply, whether that person was a barrister or a solicitor. In brief, what dictated which code applied was the nature of the work being undertaken and not the qualification obtained by any individual lawyer.

Irrespective of the complications that any individual lawyer may wish to raise in order to ignite once again the debate referred to above, what is absolutely clear is that the code of conduct of both branches of the legal profession have a certain core commonality that no lawyer can ignore or avoid.

Both codes require:

1. the rule of law to be upheld;
2. the proper administration of justice to be upheld;
3. integrity;
4. independence;
5. the maintenance of the best interests of clients (subject to the duty owed to the court);
6. the provision of a good standard of service;
7. that the public trust in the profession should not be diminished.

Recent events (without prejudging any outcome) have focussed minds on the profession. It behoves all lawyers to be aware of the above core principles and abide by them. It is also a fundamental rule of behaviour that incentives, monetary or other, should not be paid by lawyers to attract business. This is not only a rule of the professions but also a fundamental ingredient of the requirement to remain independent.

The legal environment will change post-Marrache (again without prejudging and whatever the outcome). Unless the profession can show that it is capable of regulating and supervising itself, which will prove difficult in the current circumstances, an independent regulatory and supervisory body may be imposed. Such a solution carries with it the dangers of the loss of or a diminution in the independence of the profession, which in turn has major adverse consequences on the public at large, the administration of justice and access to a fair justice system.

There are stormy waters ahead for the legal profession. It should remain vigilant to act within the codes of conduct and to involve itself actively in resolving the undoubted void that exists in the supervisory and enforcement aspects of conduct rules.


  1. If the code of conduct regulating Solicitors and Barrister is applicable in Gibraltar, why are there firms acting for clients against Marrache and then actively dissecting the practice of Marrache and Co? Is there not a conflict of interest?

  2. A conflict of interest would arise in those circumstances.

  3. Dear Llanito World

    Why would the Chief Justice encourage a conflict of interest between firms and clients?

  4. The Chief Justice would not encourage a conflict of interests. He would not neecessarily know what involvement each or any firm has. It is for each individual firm and member of each such firm to examine their involvement and decide for themselves whether it has a conflict. The mere fact that the Chief Justice sanctions an involvement does not either mean that no conflict exists or that if any conflict exists that it is absolved.

  5. But should'nt he have checked or asked before sanctioning these firms' involvement in the dismantling of Marrache?

  6. It is usually for those who have a conflict of interest to declare it.

  7. Dear LLW

    So how come they have ALL missed asking themselves this basic and serious question then?

  8. Maybe they asked themselves and decided to proceed anyway ... what then?