FAQ 32

Q32. My partner is also a barrister and we are instructed on opposite sides of a case. Are we able to appear against each other?

A32. Paragraph 603 of the Code of Conduct provides that a barrister must not accept instructions if to do so would cause him to be professionally embarrassed and sets out circumstances in which a barrister may be professionally embarrassed. In particular, paragraph 603(d) provides that a barrister will be professionally embarrassed inter alia if the matter is one in which he has reason to believe that whether by reason of any connection with the client or with the Court or a member of it or otherwise it will be difficult for him to maintain professional independence or the administration of justice might be or appear to be prejudiced.

Paragraph (e) provides if there is or appears to be a conflict or risk of conflict either between the interests of the barrister and some other person or between the interests of the barrister and some other person or between the interests of any one or more clients (unless all relevant persons consent to the barrister accepting the instructions).

The Court of Appeal in the case of R v Batte (TLR 30 May 1996) said that a relationship between husband and wife on opposing sides might give rise to an apprehension that the proper conduct of the case had been in some way affected by that personal relationship.

Before accepting instructions in any case in which there is any relationship between himself and other counsel or any other party in the case or connected with the case, a barrister should consider whether that relationship might give rise to such apprehensions, and to bear in mind that there will be some cases where the risk of such an apprehension cannot be averted by obtaining the consent of all parties in the case.

In a criminal case a barrister should also consider the comments of the Court of Appeal in R v Batte.