Bar regulator apologises to leading lawyer
Standards board says criticism of Dinah Rose KC was ‘misplaced’
The newspaper quoted the regulator as having told a complainant that Rose’s interpretation of one of the bar’s professional rules “might possibly amount to evidence of recklessness” if “taken at its highest”.
In fact, said the regulator this afternoon, it
did not find Ms Rose to have been “reckless” or to have acted inappropriately.
The Bar Standards Board accepts that, before reviewing its original decision and in the circumstances of this case, it would have been appropriate to have invited Ms Rose to comment on the review. It apologises to Ms Rose for its failure to do so, and has commenced a review of its processes for the future.
Rose said today she was “appalled” that the regulator had entertained a complaint against her without giving her any opportunity to respond to it.
The board confirmed that it had taken no regulatory action against Rose and had made no ruling against her. “We apologise to Ms Rose if this has not been made sufficiently clear,” it said.
One of the most effective advocates of her generation, Rose was elected in 2020 as the 43rd president of Magdalen College Oxford since its foundation in 1458. She is the first woman to hold the post. Although she stopped taking on new work when she became its head, the college agreed that she could complete two outstanding cases.
The complaint to the Bar Standards Board was made by a gay rights group called Colours Caribbean. It argued that Rose should not have accepted a brief to represent the government of the Cayman Islands at a hearing last year before the Judicial Committee of the Privy Council, which sits as a final court of appeal from the British overseas territory.
At issue was whether the islands’ constitution permitted same-sex marriage. The Privy Council ruled in March that it did not. But the judges, most of whom are justices of the UK Supreme Court, pointed out that the interpretation given to the islands’ bill of rights in their judgment did not prevent the Cayman Islands’ legislative assembly from introducing legislation to recognise same-sex marriage.
The question of whether Rose could refuse to take the brief was said to turn on the bar’s cab-rank rule. This is named after the principle that a London taxi, waiting on a cab rank, cannot refuse to take an unattractive passenger to an inconvenient location. There are exceptions: barristers are not required to do “foreign work” or act for a “foreign lawyer”.
In September 2021, the Bar Standards Board concluded that the cab-rank rule did apply to Rose in this case because the case in which she was hearing was being heard in London.
The complainant appealed and an independent reviewer first upheld the original decision. After a further appeal, the unnamed reviewer changed her mind. No breach of the rules was found on either occasion and the Bar Standards Board subsequently concluded that no further action was required. But having been told by the complainant that Rose had been briefed by a foreign lawyer, the reviewer decided that the barrister could, in principle, have declined to represent the Cayman government. Even then, the suggestion of recklessness reported by The Times depended on the reviewer’s assumption that a summary of new guidance issued by the Bar Council in 2014 was correct.
Extraordinarily, Rose had not been told anything about the review process. She was given no opportunity to explain her position to the independent reviewer. As I explained in great detail last year, it was not the cab-rank rule itself (rule C29) that required Rose to accept the brief. It was — in her view — the preceding rule, rule C28, which is headed “requirement not to discriminate”.
This tells barristers:
You must not withhold your services or permit your services to be withheld:
.1 on the ground that the nature of the case is objectionable to you or to any section of the public;
.2 on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to you or to any section of the public…
No doubt there was room for debate over whether that rule applied in this case. But it was the argument that Rose would have put to the independent reviewer if she had been told that the issue was being considered. Rose had already made it clear that she was respecting a principle that went far beyond the cab-rank rule, as the reviewer could have discovered even without asking her to explain her position.
In my view, it is utterly extraordinary that anyone taking a decision that could affect someone’s professional reputation as a barrister could ignore a principle as fundamental as “hear the other side”.
Having taken its decision without considering the full arguments, the Bar Standards Board then sent the complainant a five-page letter in September. It did not publish this letter — though it accepts that the complainant was free to do so. The board refused to let me see its conclusions yesterday. It merely told reporters that the cab-rank rule did not apply in this case.
Most extraordinary of all, it failed to send a copy of its findings — which were, on their face, highly defamatory — to Rose until she demanded to see them yesterday. That, I understand, is in line with the board’s standard practice.
It follows that barristers have no way of knowing that they may be implicated in an appeal and no way of knowing that an adverse finding has been made unless or until a complainant chooses to make this public.
The Bar Standards Board said in a statement this afternoon that it was aware of interest in the case in which Dinah Rose KC acted for the Cayman Islands overnment before the Privy Council in 2021.
In view of this interest, the board wanted to make clear that:
The Bar Standards Board has taken no regulatory action against Dinah Rose KC, and has made no ruling against her. We apologise to Ms Rose if this has not been made sufficiently clear.
Irrespective of the detailed provisions of the cab rank rule, the Bar Code of Conduct provides at rule rC28 that a barrister must not withhold their services on the grounds that the nature of the case or the conduct or opinions of the client are objectionable or unacceptable.
Ms Rose was correct to act in accordance with her obligations under rC28 when deciding whether to accept the instructions. Criticism of Ms Rose for taking on this case is, accordingly, misplaced.
In considering the specific issue of whether Dinah Rose KC had committed potential professional misconduct in stating that she was obliged by the “cab rank rule” to accept a brief on behalf of the Cayman Islands Government, the BSB concluded that it did not see any evidence that supported a contention that Miss Rose knowingly misled or attempted to mislead anyone in her public statement. Nor was there evidence that she was reckless in doing so and the BSB’s view of the statement was that it was careful in its content and tone.
The letter quoted in The Times did not include any discussion of rC28, as the report received referred to another rule in the Handbook. The BSB accepts that both are relevant. In any event the BSB did not find Ms Rose to have been “reckless” or to have acted inappropriately. The BSB accepts that, before reviewing its original decision and in the circumstances of this case, it would have been appropriate to have invited Ms Rose to comment on the review. It apologises to Ms Rose for its failure to do so, and has commenced a review of its processes for the future.
The BSB wishes to stress the importance to the administration of justice of an independent Bar, willing to take controversial or unpopular cases. Barristers are not to be identified with the views of their clients. It is wholly unacceptable for barristers to be subject to abuse or harassment for carrying out their professional duty to act in unpopular cases, regardless of their personal views. Barristers who do so are acting in accordance with the ethical standards of the Bar, and are essential to the functioning of the justice system.
In her response this afternoon, Rose said:
I was appalled to discover this week that the Bar Standards Board had entertained a complaint about my conduct without giving me any opportunity to respond to it, and that its independent reviewer, whilst rejecting that complaint as unfounded, had made comments that were based on an erroneous and incomplete reading of the Bar Code of Conduct. I would like to thank the Bar Standards Board for its recognition that its process was flawed and for its apology today.
I am conscious that lawyers in many countries face intimidation and harassment for representing controversial clients. This is never acceptable. Our legal system cannot function without advocates who are prepared to argue all sides of a case, including those which are objectionable or unpopular.
I am pleased that the Bar Standards Board has now accepted that I was bound by my professional obligations to appear for the Cayman Islands government.
Update 1830: Rose said she would be suing The Times for libel:
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