“The aspiring barrister must negotiate a pupillage. Twelve months spent with one or more practising barristers, watching and learning the trade, is not necessarily the most productive use of time or the most effective method of preparing lawyers to argue cases in court […]
[One former senior judge] recalled sitting in ‘the white-washed misery of the pupil’s room…So bitter is the thought that death itself can hardly be more bitter.’ […] Unlike Mr Pickwick, barristers do not need to be reminded ‘what fine places of slow torture’ barrister’s chambers are for the pupil: ‘the waiting — the hope — the disappointment — the fear — the misery — the poverty.’
Once pupillage has been overcome, the enthusiastic and promising advocate who wishes to practice at the Bar must find a seat in chambers — by no means an easy task.”
— David Pannick QC, Advocates (1992), pp 208-209
The previous post is full of honest, practical advice about how to behave ethically as a pupil, and to build the professional relationships that will be essential as you start practice.
As you continue thinking along these lines, here are three scenarios not too far from actual experience. Working through them and discussing them with colleagues may be helpful to understand the application of our profession’s ethical standards in practice.
1. Four weeks into pupillage, your mentor asks you to join a consultation with her instructing attorney and a celebrity client. Right away, she asks you to take a drinks order. When you return, the group is discussing whether to launch an application for an urgent interdict to restrain the publication of defamatory material on a prominent celebrity gossip site. You find that everyone completely ignores you during the consultation. In fact, you feel quite useless and invisible. Trying to make the best of the situation, you carefully take notes of the material facts and the think about how you would make the case for urgency in court. When you finally leave for the evening and head to dinner with a good friend, you find the experience is still bothering you, because your mentor knows very well that you worked in media law for several years at your former firm and yet didn’t involve you in the consultation at all. Your friend asks if everything is alright. “You wouldn’t believe who walked into Chambers today…” you begin.
2. You attend a consultation about two months after the start of pupillage. The instructing attorney had been quite vigourously urging his client that an urgent interdict is what is needed. Your mentor has firmly disagreed. Having heard the client’s version, your mentor considers that there is no proper case for urgency. After about an hour has passed, she steps out of the room. The instructing attorney starts chatting with you about your background and your plans for after pupillage. Realising that you used to clerk for a judge who is in urgent court the next week, the attorney asks you if you think that judge would be inclined to grant the interdict. You are quite sure he is looking for leverage for his position so that he can press the point with your mentor. How would you respond?
3. Your mentor has encouraged you to feel welcome to read through any of the files on his desk, to become familiar with the logic (or otherwise) of how briefs are presented and court papers prepared. The experience is so new and different from anything you saw during your LLB that you diligently seize the opportunity. What strikes you in particular is a lengthy draft affidavit in the name of a certain disreputable businessman who is the subject of intense public and media scrutiny. “He can’t possibly claim all these statements are true and correct to the best of his knowledge and belief,” you think to yourself, “What a joke.” You pause to think a bit about whether a statement can ever be “true and incorrect”, or “untrue and correct”. You make a mental note to ask your mentor about his reflection on the ethics of the situation. Over a friendly lunch in your group, you share your astonishment about the draft affidavit with one of the silks, who listens with attention and patience to your thoughts. “We are creatures of our instructions, I suppose,” he says wisely. “As long as the deponent is willing to go on oath and the client has not instructed you to fabricate the facts, you can proceed in good conscience.” Later, you realise from the court papers that the very same silk is your mentor’s opponent in the matter. What action, if any, would you take?
Ethics blog for pupils 