Interviews · The BVC

Public Service Announcement

ImageI find it absolutely astonishing that I am writing this, but I think you ought to know.

I was teaching at the Middle Temple students course in York this weekend. I was told that the BPTCs (all of them) were teaching the old, superseded, Code of Conduct as their “Ethics” course. Yep, that’s right – £17k to be taught something that does not apply. Apparently, because the exact format and content of the new Handbook wasn’t clear, it was decided that it was easiest to teach the old Code, which definitely wouldn’t apply when all of you qualified. Words just fail.

The BTPCs should be ashamed of themselves. Ethics should have been timetabled to start when the precise terms of the Handbook became clear. Space should have been made to do it. Defaulting to an easy, but irrelevant, position is unacceptable.

The BSB should have realised the difficulty and sorted it. Not much point regulating the profession unless you give a stuff about its students.

Meanwhile, BSB students please understand that the new Handbook changes a lot. Particularly, ethics questions about missing convictions for criminal clients are – under the old Code – answered by saying you can mitigate on the basis of the information presented by the Prosecution. That answer is now WRONG. For what it’s worth, I also think it’s wrong to say that you do have to tell the Judge there is a missing conviction – that is taking the duty to the Court as if it trumps the duty to the client. It doesn’t – both duties exist together. I think the right answer is to tell the Judge that they cannot rely on the Prosecution’s record, but to say no more than that. Other views welcome.

Barristers, please bear in mind that those interviewed who qualified in the year 2013-14 are not being taught the ethics that apply to the profession. Cut them some slack – and when you take them on, make sure that the first 6 months includes the ethics training for which they have already paid but have received no value whatever.

What have we come to? Perhaps the entities making money out of students could provide a percentage of it to offer more pupillages for the beleagured publicly funded Bar. Now, that would be robust regulation.

UPDATE

Alex Aldridge of Legal Cheek has got a quote from the BSB’s head of Education and Training, Simon Thornton-Wood, who says:

“In setting out the 2014 BPTC course, providers asked that the syllabus be agreed early in 2013. The development, review and approval process for course materials in a programme of this scale requires very careful advance planning. It was not until the Legal Services Board approved the new Handbook in July 2013 that there was any real certainty it would be coming into force this year.

“We’ve worked closely with both providers and students to make sure that, by the end of their BPTC, students know about the new Handbook – and the key changes it introduces – which will be fully reflected in next year’s syllabus and exams. That said, it is important to point out that the core principles of the professional ethics to which we expect barristers to adhere remain unchanged from previous years.”

Hmm. First, what’s the point in planning a course 9 months ahead knowing it would be wrong? The BSB regulates. Even if the BPTC providers asked for this, they don’t have to have it. We’ve been asking the BSB not to impose QASA but that hasn’t meant it’s rolled over to have its tummy tickled. Secondly, the core principles have altered in quite a large way in the eyes of a great many practitioners. Thirdly, we teach ethics not core principles. Fourthly, the prospect of the new handbook not coming into force this year have been remote and the BSB could have – *gasp* – made two plans: one if it did and one if it didn’t. Fifthly, plenty of the students on the course last week did not know of the new handbook or the changes and they aren’t being taught it. Otherwise, great quote.

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16 thoughts on “Public Service Announcement

  1. May also be worth mentioning that if people are being taught the old Code of Conduct, they’re probably being examined on it as well. So answers based on the current Code may be ‘wrong’ for the purpose of passing the Bar Course, even if they’d be right in practice.

    If you’re on the Bar Course, I’d strongly advise checking.

    1. Absolutely – the examination will be on the non-applicable code. Therefore, answer wrongly to ensure a pass. Through the looking glass we go.

  2. The BPTC costs an absolutely disgusting amount of money. A good friend of mine recently described it as “a waste” – this should not be the case for a legal qualification! Apologies for the somewhat ranty post, but £17 is quite simply too much, and restricts so many well-qualified people from taking the course. So much needs to change.

  3. I have long had a view of the providers that I could not politely reduce into writing. I would like to see the BSB grow a pair and put students’ welfare ahead of providers’ profits and cut access to the course for 2:2 students who are throwing their money at supporting the providers when no pupillage awaits. There are too many providers who are too eager to take cash from anyone and everyone who will pay, and the service given, in my experience, is lamentable. Simon, your comments and advice over several years now are to be applauded.

  4. Simon,

    The BSB set the syllabus and the assessment, not the providers. In the summer of 2013, before the 2013 cohort began the BPTC, the BSB announced that they would not assess the Bar Handbook until the 2015 sitting of the Ethics assessment, ie the 2014-2015 students would be the first to be assessed on the Handbook, not the code.

    I would have rather taught the Handbook but it’s not a choice that I could make.

    1. I’m not sure that these decisions are made in a vacuum. My experience of the providers is that they are perfectly happy to lobby like fury – they certainly did when it appeared that taking an excessive number of students might lead to – *gasp* – a fine. But I agree the BSB haven’t regulated effectively either. The idea of a professional cohort deliberately being taught outdated professional ethics would – in a properly regulated profession – have been publicly ventilated. There is an irony here – the BSB publish the names of disciplined barristers (and I am for that) but not the names of those responsible for this complete cock up.

      Obviously, I accept that you would rather teach your own students effective and current material, and that the choice wasn’t yours.

      1. Perhaps take a moment to find out what the providers have lobbied for on this and many other issues. I note from our twitter conversation that because a provider/some providers refuse to tell you how many from each cohort get pupillage, that means somehow they won’t tell you their view on this or other issues.

        Apparently all providers should be ashamed of themselves for something that the BSB decide. I honestly don’t see how that makes sense unless all the providers were complicit in this decision.

        PS: 1/3rd of those who started pupillage in 2011 went to BPP. It’s in the Bar Barometer. The BSB are in the best position to tell you how many people from each cohort at each provider, got pupillage. Many of our students don’t tell us if, as is common these days, they get pupillage after they finish the course.

      2. As I said on Twitter – transparency is a habit. This is unlikely to be one party’s fault – as with most cut-throat defences, each blames the other and both are responsible.

        Those figures are not what I want. There are 1700 odd students this year and 300 pupillages. If BPP gets 1/3 of them, and has 500 students then 80% of BPP’s students don’t get a pupillage. Assuming ⅓ of those don’t look in the UK, so should be ruled out, that’s 275 candidates who have paid £17k each – amounting to £4,675,000! to not get what they most want. Those are the economics. It disturbs me – and I suspect it disturbs you.

  5. Simon, I’m not sure you’re completely right re the specific issue of revealing missing previous convictions.

    As I understand it, the old Code said that you don’t have to reveal them but you must not mislead the court in mitigation. So you can’t say “he only has 2 convictions for theft” if he actually has 5. But you could say “the antecedents provided by the prosecution only shows 2 convictions for theft” although that is sailing very close to the wind.

    The new handbook says “…For example, if your client tells you that he has previous convictions of which the prosecution is not aware, you may not disclose this without his consent. However, in a case where mandatory sentences apply, the non-disclosure of the previous convictions will result in the court failing to pass the sentence that is required by law. In that situation, you must advise your client that if consent is refused to your revealing the information you will have to cease to act. In situations where mandatory sentences do not apply, and your client does not agree to disclose the previous convictions, you can continue to represent your client but in doing so must not say anything that misleads the court. This will constrain what you can say in mitigation. For example, you could not advance a positive case of previous good character knowing that there are undisclosed prior convictions. Moreover, if the court asks you a direct question you must not give an untruthful answer and therefore you would have to withdraw if, on your being asked such a question, your client still refuses to allow you to answer the question truthfully. You should explain this to your client.”

    Now, apart from the case where the mandatory sentences apply (where, I admit, there is a big chance) the position seems to be the same: you cannot say anything that misleads the court. The only other possible difference is the last passage of the above extract, which indicates that you have to withdraw if you are asked a direct question about it by the judge. But really, the judge shouldn’t ask that, because its privileged and it is the role of the prosecution to hand up the previous convictions.

    1. The Judge shouldn’t ask but they do sometimes. And I don’t think you have to withdraw – you can simply decline to answer. There is no misleading going on. Nor do I think you have to tell your client you are obliged to answer the question truthfully – indeed I do not think you should tell your client anything of the sort. This hasn’t been very well thought through.

      The difficulty is that – whatever the Handbook says – I don’t believe this is confined to statutory maximums. What about a man of previous good character as far as the Court is concerned? That specifically engages the sentencing guidelines. Saying nothing is permitting the Court to be misled. You don’t have to say a word to mislead.

      The whole idea of competing duties is fraught with difficulty and I don’t think it has been fully explored. But, now we have it, I don’t believe that silence is acceptable if you know the Court has a false picture. Nor do I accept that you must betray your client’s instructions. You say the prosecution material is unreliable (the Judge may faint when he hears this, so unlikely is it) and stop there. As best you can, you are holding the balance between two competing obligations.

  6. Hang on… let’s just put this in perspective…

    The ‘meat’ of the BPTC is the Civil and Criminal Litigation and Evidence modules: these consist of memorising enormous chunks of a reference book (The White Book and Blackstones/Archbold, respectively) which sits on the desk of every practitioner, precisely so that they can look things up in it and, by virtue of the in-year updates, is out of date by the end of the course.

    The BSB requires students to know ‘certain key criminal cases and statutory provisions’ from memory, but refuses to say which cases and statutory provisions.

    The skill of opinion writing is ‘tested’ by requiring candidates to write an unseen Opinion in 4hr 15 mins – something which would arguably be professionally negligent in practise. I believe that all but one of the providers require it to be written longhand…

    ADR, all that getting-parties-to-explore-options-with-an-intermediary-and-work-together-for-a positive-outcome (and supposedly the future of cost-effective dispute resolution) is examined without any practical element.

    This isn’t Kafka, or a theatrical farce, this is what the BSB thinks is central to entry into the profession in the 21st century. It’s what the long-delayed LETR said was basically OK. It’s what the head of the BSB, who’s never practised as a barrister, says students really need in order to succeed at the Bar.

    In other news, at time when criminal pupillages are dwindling to nothing and we are constantly told that the criminal bar is about to implode, advocacy and conference skills are taught overwhelmingly using criminal scenarios, because most of the teachers are former criminal practitioners, fleeing from a dying industry. That, at least, could be laid at the door of the providers; but I’m not sure they’re the real villains of this piece.

    And don’t even get me started on the Inns’ ‘Qualifying Sessions’ racket…

    At best, the BPTC is a joke, and not a particularly funny one. It’s a 9-month long exercise in absurdity that exists because the BSB thinks there must be course to maintain the dignity of the profession and has then looked for anything it can find to pad out a syllabus. At worst, it’s symptomatic of a profession that has failed to put its own house in order and risks having somebody else do the job for it.

    So, Simon, yes: the issue with the Professional Ethics syllabus is bad; but it’s the tip of a massive £17,500 ice-berg. Fixing it would be great – like re-arranging the deckchairs on the Titanic. As your comments about numbers of students/pupillages, etc, suggest, there are other, bigger, fish to fry (to cram a third nautical simile into the paragraph). I’ve seen plenty of BPTC students demonstrating against cuts to a profession that they don’t yet belong to – and stand relatively little chance of joining. I’ve seen and heard much less of practising barristers taking an interest in the BPTC, LETR and the like and saying ‘this is an embarrassment to the name of our profession’. If the kids aren’t alright, it’s the BSB’s fault, and by extension the profession’s fault, and nobody else’s.

    1. I agree in part. Briefly:

      Practitioners don’t memorise the big books. But they do memorise the key sections and it helps. Which competent civil practitioner looks up CPR3.9 every time it arises? We can argue about where the line is, but it is at least reasonable for the BPTC to encourage familiarity with key material.

      Writing an opinion by hand is neither here nor there. It encourages brevity and thought – I hand wrote for 7 years because it let me amend as I went on. I type for the same reason. The unseen element is no different to getting an urgent set of papers. Again, not necessarily the way everyone would do it, but within a reasonable range.

      ADR – how do you examine it? The point about ADR is that the mediator works round stupid clients and money-grabbing lawyers. The point of a JSM is to outstare your opponent. All you can do is practice. Mediation and negotiating strategy could be taught but examining it is tough and adds nothing.

      Ruth Deech isn’t the person signing it off (aggravating though she sometimes is). Ad hominem attacks don’t improve a point.

      You recruit the teachers you can. Most of those I have encountered know what life is like and are conscientious. Exceptions are inevitable – not every barrister is a star either. I don’t understand what the alternative is. I understand you are frustrated and grumpy, but there has to be a positive suggestion if this goes anywhere.

      The Inns teach for free. Not sure why that’s a racket.

      I agree the course is too long and too sparsely filled. I agree that we could inject more content. But some sort of course is needed because the Universities don’t teach all that is required. Chambers could do it but standards would vary wildly and nowadays virtually no Chambers could cover all the areas – thereby condemning their pupils to the specialisation they started with.

      I agree that the profession could take more interest, but 15 hour days seem to get in the way. So it is delegated and regulated and my particular post was about when delegation and regulation go wrong. Your complaint is that something else should happen. What?

      Feel free to comment below, or email me and I’ll post it. Thank you for bothering to write – even though we don’t entirely agree.

  7. Briefly (usually I think that people who post comments on the internet are only one step removed from those who write letters in block capitals to the local newspaper…)

    On memorising the reference books: ‘where the line is’, as you put it, is precisely the issue. Encouraging familiarity is more than reasonable, it’s laudable, in fact essential: but it’s not the same as wasting students’ time and effort by forcing them to memorise great swathes of procedural minutiae which – just like the Ethics syllabus – will have changed by the time they sit their exams, much less get into practise. This is time and effort that could be better spent on relevant skill-based training. Of course there have to be procedural exams, but closed book memory tests are surely not the answer.

    On opinion writing: your points about your own experience are, of course, very valid. But how many current pupils or junior tenants will write an opinion in longhand? This is supposed to be a course to prepare people for practise: the Army has a catchphrase, ‘train as you fight’: it makes a lot of sense. One could say that 4hr 15 min opinions encourage brevity and thought… one could also say that it encourages superficiality and fails to develop or test a vital skill properly.

    On Baroness Deech – I wasn’t really making an ad hominem (ad feminam?) attack: although I think there is a pretty major leadership issue that if you’re the (titular) head of an organization, you accept responsibility for what it does/doesn’t do and its public pronouncements. The real question here, which I may not have made very well, is surely how a learned profession managed to end up with a non-practitioner at the helm. Can you imagine the GMC having a non-doctor as its Head of Education and Standards (probably the nearest equivalent to the head of the BSB)? Either way LETR would be funny if it were not so tragic.

    On the Inns: I’m not sure that the Inns do ‘teach for free’. They do little teaching and it isn’t free. At a very conservative estimate, with the 12 cheapest qualifying sessions and joining fee, a Middle Temple student will pay the Inn £300 for the privilege of being called. For that they will mostly receive an ill-considered and haphazard collection of ‘lectures’ delivered by speaker of peripheral relevance: construction law one week, a musical evening the next. There will usually be a ‘jokey’ open acknowledgement that everybody just wants to get through it as quickly as possible and get stuck into the cheap red wine. There is the odd gem, I grant you; but there’s a reason why they stand out. By and large the Inns are happy to take the money and pander to the worst sort of sub-Hogwarts dressing up fantasy for no-hoper students. The Inns had/have a unique position for moral leadership in professional education and have utterly failed to do enough to reduce student numbers, lobby for changes to entry into the profession, etc.

    I don’t believe in silver bullet solutions, but here’s the nearest there is to one: make it obligatory for UK students to have pupillage in order to attend the BPTC. This would, at a stroke, improve the standard of group sessions on the BPTC, reduce the numbers attending the course (and thus potentially the costs) and prevent hundreds of young people throwing away a terrible sum of money each year. This would also have the benefit that students could study a more tailored syllabus to fit them for the specialisation they will enter – much like the bespoke LPCs used by the large solicitor firms. At present, those who have pupillage are effectively punished by being compelled to learn a practise area (e.g. crime) that they will never practise. It may be a London-centric view, but it seems to me that if specialist advocacy is the future of the bar, students should be encouraged to specialise early. How many criminal pupils will move to a civil set, if it doesn’t work out? How many chancery pupils will move to a criminal set…? I don’t think there’s any question of ‘condemning’ people to a specialisation they start with, if that specialisation is as broad and fundamental as civil / criminal.

    To come back, the long way round, to where this started… My real fear about the professional ethics ‘gap’ (which I would agree, is a woeful situation), is that it is symptomatic of a much wider failure to take professional education seriously. I agree that delegation and regulation have gone wrong here – my point is that their overall record is pretty poor. The Bar is a collection of individuals – that’s a great strength and a real liability. If a profession carries on being pretty poor at running its own affairs, because everybody thinks it’s somebody else’s job, sooner or later it will lose the right to do so. Unlike, perhaps, doctors or firemen or coalminers, lawyers enjoy no instinctive support from the general public – just read the Daily Mail any day of the week. If I wanted to take on the Bar over fees, legal aid cuts, competitive tendering, etc, I’d be working on a media narrative that said ‘this profession has gone unreformed for too long’, and when you look at the BPTC there’s plenty of evidence to support that narrative. The ball is in our court – for the moment…

    On a largely unrelated note, your website is excellent. It’s exceptionally informative and well balanced and clearly written with great passion, but by someone with a degree of perspective. I found it to be a really valuable resource when first considering a career at the Bar and trying to get to grips with the challenge– so, thank you.

    1. @ Anonymous 10:31

      Simon Myerson QC is completely spot on about what he says about the need for some sort of BPTC course. Specialisation is probably the future, but your suggestion condemns people far too early on, before they have even started their career at the Bar! You seem to have no idea about how life works. People move jobs all the time, perhaps less so at the Bar, but it does happen. Having a well rounded, comprehensive BPTC allows for the basic knowledge of a pupil to be similarly well rounded. Stop acting as if you speak for the masses, when you only speak with regard to your own personal experience. People lives are different and you fail to appreciate that. I would have felt cheated if my BPTC didn’t provided some knowledge beyond what I use during pupillage.

      From what you said, it is obvious that you are still quite young, but courses such as the BPTC need to cater to wide spectrum, and allow for practitioners the flexibility to understand multiple areas. As for the specialised LPC, if the law firm is paying for it, I don’t see anything wrong with asking future trainees to do a specialised course. It may better fit the needs of that particular firm, emphasis on ‘particular firm.’ The needs of a few places do not speak for the entire legal sector.

      Also, you speak as if each legal area exists in a discrete space separate from another. Even as a specialist you may find yourself having to wander into other areas to provide a comprehensive service to your client. I’ve dealt with cases that have regulatory, civil, criminal and clinical negligence elements all in the same case! My BPTC knowledge allowed me to have foundation in all of these.

      Also, about making the BPTC conditional on a pupillage offer. Almost all my friends and I got pupillage post BPTC. It’s a risk we took, but it was our risk to make.

      From a pupil whose pupillage is in a different area than what I intended to do, but so happy I was able to make the switch.

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