6 minute read
When Should Barristers Comment Publicly on Cases?
Tiho Mijatov*
Barristers are sometimes asked to make media comment about Court cases. Deciding to make a public comment can raise ethical issues. The decision in each case will be for the individual barrister’s judgement, but the NZBA offers the following advice about what considerations should be taken into account before media comment is made. This is not legal advice but is a list of general pointers and resources for barristers.
Comment on cases generally
Freedom to express your comments publicly is an important right held by members of the public including barristers. As Lord Atkin has said:
“ ... no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. ... Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men [and women]”.
However, free expression must be balanced against additional considerations arising from a barrister’s special position – including duties to clients and an overriding duty to the court. Before making public comment a barrister should turn his or her mind to the following ethical issues:
a. Independence: a barrister must be independent and free from compromising influences or loyalties when providing services to clients (r 5, and see r 13.5). Consideration should be given to whether the barrister’s public comments may hamper the barrister’s ability to remain independent in his or her legal work. For example, repeated public comment on selected issues or certain categories of person may undermine the perception of a barrister’s independence.
b. Avoiding gratuitous self-publicity or touting for business: in making public comment a barrister should be mindful of the rules about advertising and solicitation of work. Direct solicitation of work is prohibited in certain situations (r 11.2). A barrister should consider whether the intended public comment falls foul of these rules.
c. Client’s best interests: a barrister is required to protect and promote the interests of the client to the exclusion of the interests of third parties (r 6) and has a duty to act in the best interests of the client without regard for the barrister’s personal interests (r 13). A barrister should therefore consider why they wish to make public comment and must ensure any intended public comments will not hurt the interests of any of the barrister’s clients.
d. Duties as officer of court: a barrister must not act in a way that undermines the processes of the court or the dignity of the judiciary (r 13.2). Public comment by a barrister may promote court processes and respect for the rule of law by educating the public about the workings of the legal system or correcting misunderstandings reported in the media about a case. At the same time a barrister should also consider whether any intended public comment risks breaching his or her overriding duty to the court whether by its tone or substance.
A barrister who intends to make public comment should also bear in mind that he or she may be exposed to personal liability, including for defamation or contempt of court. Professional indemnity insurance policies may often not extend to cover for such liability.
Barristers commenting publicly on their own cases
Additional considerations apply:
The stage the proceeding has reached is relevant. Restrained comment if any will be appropriate where the matter is “sub judice” (under judicial consideration).
The nature and type of proceeding must be considered. Particular care is needed to preserve a defendant’s fair trial rights in criminal proceedings. Discretion is required in sensitive civil matters. Suppression must be complied with in all circumstances.
The public interest in the media receiving accurate information about the justice system and its processes may support a barrister making media comment.
Client considerations include whether informed consent is required. Breaches or waiver of confidentiality or privilege must be guarded against.
More caution is required. The need to take into account further considerations means it may be more difficult for a barrister to appropriately comment on their own cases than cases generally.
Social media comment
Be aware of the reach of social media. Comments made by social media are instant and widely released. Control of subsequent use or preventing manipulation of your comments means caution is required when posting online.
The risks of comment are heightened because:
a. Client confidentiality may be more difficult to protect. The use by social media of meta-data like location services, and algorithms that may draw links between lawyer and client, may create additional confidentiality risks.
b. Independence must be preserved even where a barrister makes online connections with others or is otherwise linked with people or their interests online.
Resources for Barristers
New Zealand
Crown Law “Media Protocol for Prosecutors” (1 July 2014).
Duncan Webb, Kathryn Dalziel and Kerry Cook Ethics, Professional Responsibility and the Lawyer (3rd ed, LexisNexis, Wellington, 2016); and Webb (1st edition, Butterworths, Wellington, 2000).
Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
Richard Mahoney “Lawyers’ Statements of Personal Opinion to the Court” (2015) 14(1) Otago Law Review 147.
Richard Scragg The Ethical Lawyer (Thomson Reuters, Wellington, 2018).
Bar Association on-demand webinar -Social Media for Barristers
Australia
G E Dal Pont “Lawyers’ Professional Responsibility in Australia and New Zealand 2nd ed, Law Book Co, NSW, 2001).
Kylie Burns and Lillian Corbin “E-Professionalism: the global reach of the lawyer’s duty to use social media ethically” (2016) Journal of the Professional Lawyer 153.
Justice Steven Rares “Social media – challenges for lawyers and the courts” (speech, 20 October 2017).
Law Society of New South Wales “Guidelines on social media policies”
Office of Legal Services Commissioner “Social media practice note”
Canada
Brian Foster QC and Jared Craig “The lawyer and the media: what can a lawyer say to the media?” (2014) 43 The Advocates’ Quarterly 59.
United Kingdom
Bar Standards Board “Medial comment guidance” (April 2013).
Halsbury’s Laws of England “Barristers” section (ix) advertising, touting and publicity. See now at vol 66 (legal professions).
UK Bar Council, Ethics Committee “Expressing personal opinions to/in the media” (October 2014).
International
International Bar Association “IBA international principles on social media conduct for the legal profession” (24 May 2014).
* Tiho Mijatov is a barrister at Stout Street Chambers and has experience in both civil litigation and criminal law. He regularly appears in courts and tribunals around New Zealand in a wide range of pre-trial matters, trials, appeals, and other hearings. Tiho often undertakes judicial review work on a wide range of public law matters including in the fields of human rights and prisoner rights.
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