Guest blog: To our members, we are the fourth emergency service

8 November 2018

"To our members, we are the fourth emergency service." That used to be the slogan of the AA. I think that the Bar Council's Ethics Committee should adopt it.

All barristers hope never to need the assistance of the Ethical Enquiries Service. Even less do they want the help of the Ethics Committee, to which the really sticky problems are referred. But I really hope that, when you do need help, that we are providing the service that you want.

My main reason for joining the Ethics Committee was the bitter disillusionment I had felt, many years earlier, when - very unfortunately - I had needed the help of its predecessor committee twice in two months. On the first occasion, I thought that the advice was cowardly. On the second, I thought that it was just wrong. I decided then that I wanted the chance, one day, to have a go at doing the job myself.

The calls I have taken have usually been from panic-stricken barristers whose client has lied, whose solicitor has disappeared, who fear wasted costs orders and who have been given ten minutes by an irate judge to sort it all out. A barrister can feel very alone at court when things go wrong. I hope that those of us who take the calls- staff and Committee members- are genuinely doing something useful. And a discussion with someone who is completely removed from the pressure of the situation does seem to help. Often the query is not truly ethical - the barrister has spotted the ethical issue without any trouble at all, and knows what can and cannot be done - but needs a practical solution.

For me, the most important role of the Ethical Enquiries Service is to provide visible and, if required, public support for the barristers who call us. We are exempt from the duty to report serious professional misconduct to the Bar Standards Board. Our advice is confidential, but that confidence is owed by the adviser to the barrister. You are free to tell anyone at all that you took advice from the Ethical Enquiries Service, and what that advice was. We ask you to ask the adviser's permission if you are going to name him or her, but you do not need even that permission if you ever want to tell the BSB about the advice. I encourage those who call me to tell the judge that advice has been taken from a member of the Ethics Committee; I hope that the information will have a calming effect (on both judge and barrister).

We always hope that anyone who calls us will not end up facing a BSB complaint. If that happens to you, it will not be a complete defence for you to say that you called the Ethical Enquiries Service and followed the adviser's advice; the BSB is independent, and advice given by us cannot bind any BSB decision-maker. But the hope is that the BSB will give substantial weight, when considering any allegation of misconduct, to the fact that the barrister recognised a difficult problem, called for help and took the advice offered.

Much of the work of the Ethics Committee is technical. Individual members and staff have developed great expertise in the ethical issues surrounding money laundering rules, the various business arrangements that barristers can now make, direct access, and the conduct of litigation. Over the years, the code of conduct has grown ever larger and more complicated. My instinct, though, is the same as it always was. If you are thinking of doing something, but would be embarrassed to see it reported on the front page of theDaily Mail,don't do it.

Cathryn McGahey QC, Vice Chairman of the Bar Council Ethics Committee and member of Temple Garden Chambers.