Barristers, Independence and Disclosure Revisited

Abstract

A RECENT judgment of the English Commercial Court1 provides the occasion for a fresh review2 of the potential for disqualifying English barristers from acting as arbitrators in cases where barristers from the same set of chambers act as advocates. The grounds for disqualification are conflict of interest and the risk of the leaking of confidential information which may also be privileged. The judgment confirms the previous law. However, trends in barristers' chambers, the increasing number of solicitor specialists and advocates and changing attitudes to standards among the judiciary may make disqualification more likely. Barristers' chambers in England are not organized in the same way as most law practices are worldwide. Most lawyers form partnerships, in which the partners share the profits and losses of their practice, operate under a common professional name and out of the same office or group of offices. English barristers do not form partnerships. They are sole traders, self-employed, sharing expenses, but not profits and losses. The common name which they use to identify themselves has usually been the postal address from which they practise, although there have recently been many departures from that tradition. The groupings under which English barristers operate are known as chambers or sets of chambers. To those unfamiliar with the organization of barristers' chambers, it appears that there is a risk of a conflict of interest arising because of two factors. The first is the apparently common financial interest of those whose roles should be completely separate in the arbitration; the second is the risk of the leaking of confidential and privileged information within the one business. Conflict of interest is here defined narrowly as a rule that prohibits acting for more than one party in the same dispute. When one of the parties ceases to engage one of …