Bermuda’s Barristers’ Code of Professional Conduct 1981: is the Code in need of an update?

The ethical rules and regulations governing Bermuda barristers and attorneys are principally found in the Barristers’ Code of Professional Conduct 1981, made by the Bermuda Bar Council and confirmed by the Chief Justice under section 9 of the Bermuda Bar Act 1974, and first brought into operation on 7 August 1981.

There are a few aspects of the current Code which might warrant renewed consideration (if they are not already the subject of Bar Council review).

Taking some of the current Rules, but in no particular order:

Rule 114 currently provides that “Informal discussions between barristers regarding a case should normally be treated as confidential unless it has been clearly established between them that the discussions are not so intended“. But the English Bar Council / Bar Standards Board does not think very much of the ‘counsel to counsel rule’, given the difficulties which it can cause in practice, and ethically: see, for example,

Rule 44 provides that “a barrister must ensure that the court and opposing counsel are informed of any relevant decision on a point of law or any legislative provision, of which he is aware and which he believes to be immediately in point, whether it be for or against his contention“. Why is this obligation qualified by such subjective language? Shouldn’t every barrister be under a positive obligation to research the law thoroughly, and draw all relevant authorities to the attention of the Court?

Rule 58 provides that “Save with the consent of counsel of the opposing side or of the court, a barrister may not communicate directly or indirectly with a witness, whether or not the witness is his client, concerning the evidence he has given or may give, once the witness has begun to give evidence until his evidence has been concluded“. The Court of Appeal for Bermuda has recently suggested that this rule should be re-drafted so as to make clear that a barrister should not communicate with a witness whose evidence has been concluded, but where a re-trial has been ordered (absent the other side’s or the Court’s consent). This seems like a sensible suggestion (given the circumstances of that case), but it would no doubt deserve some further discussion.





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