The title of this piece was based on a claim made by the Bar Council some time ago, (suggesting the claim predates the pandemic), which was that ‘unethical behaviour among barristers is more limited and nuanced than in other legal professions.’ Presumably, the other legal professions include solicitors, CILEX and para-legals without qualifications. The title suggests that we barristers with our limited ‘unethical behaviour’ are somehow better than the rest of the legal rabble. Sadly, that view appears to be somewhat different from the embarrassing reality, as set out in the recent Harman Report.
By Elissa Da Costa-Waldman MCIArb, Westgate Chambers
Five years on from the beginning of the pandemic and in the light of the independent review of bullying, harassment and sexual harassment at the bar, conducted by Baroness Harman and published in September 2025, ethical behaviour between barristers and even between bench and bar seems to have been affected by the pandemic notwithstanding the move to much remote working. It would seem that it is just as easy to bully and harass someone remotely as it is in real life, and perhaps it is even easier because of the barrier of the screen, and perhaps the air of unreality.
The Bar was traditionally a ‘gentleman’s’ profession, open to those who could afford, and even enjoy, the vicissitudes of self-employment. To those of us who occupied the profession’s sidelines for a while, to the outsiders and the viewing public who love a good old fashioned courtroom drama, it has been easy to be persuaded that the Bar is a profession in which everyone is polite and well mannered. Sadly, in the 21st Century, this is far from the truth as demonstrated by Harman’s report. Whilst the report is positive in that it makes some far reaching and extremely helpful recommendations, it is a huge cause for concern that these recommendations are even necessary and that the behaviour complained of, has been going on for decades.
The complaints that have given rise to the report are particularly abhorrent from within a profession predicated on upholding the law (and one would have thought good morals too) and thus should be setting a good not a bad example or, alternatively, considering themselves above the law.
It is hard to know whether or not to commend a profession which invented ‘Talk to Spot’ the body to whom complaints about abuse, bullying and sexually predatory behaviour and harassment are made. Surely we would all want the profession to be so exemplary of good values that Talk Spot should not be necessary.
The level and type of abuse would appear to be worse than you may think. One ‘witness’ reported to the investigation-
“In the past I have been offered references from judges in exchange for sexual favours. Therefore, because pupillage, tenancy or indeed better quality work, or junior counsel roles are heavily dependent on
receiving favourable references from senior members of the profession, junior members are terrified of speaking out and often consent reluctantly to sexual relations as they know a favourable reference will assist their career in a competitive market. Often the same senior members of the profession who are happy to sexually exploit junior members will later complain that those junior members “slept their way to the top.”
Not only is the behaviour the complete opposite of what should be expected of those who profess to uphold principles of justice and fairness but it is clear that there is a barristerial casting couch in what is essentially a very hierarchical profession. Women, ethnic minorities, those who are professionally weak through lack of experience – all are targets for the less scrupulous, simply because they can and their victims have hitherto been reluctant to speak up because of the impact on their budding careers.
Given the importance of calling out unacceptable behaviour, it is shameful that several victims told the enquiry that they felt unable to complain because of the ramifications of not travelling along the preferred career path.
Of particular distaste is the bullying against pupils, those whose dreams and aspirations we should encourage, build up, and provide with the best experiences and examples of the bar and bench, not the worst.
The impact of this behaviour also goes beyond the bar itself. As Harman points out in her foreword to the report, we do not merely owe the highest ethical standards to our clients, each other and the court but to our system of justice. As she so rightly says, ‘Respect for the rule of law depends on it.’
Baroness Harman blames the ‘culture of impunity for those at the top who commit misconduct.’ The victims of this unacceptable behaviour feel unable to complain for all the reasons stated above while the perpetrators ‘can be pretty confident that nothing will be done about it.’ As a result of this report, its recommendations and the support of the Bar Council, that looks set to change.
The report makes no less than thirty six recommendations to achieve this necessary culture change. The Code of Conduct will be tightened up such that chambers will be required to put in place anti-harassment/bullying policies and provide training. There will be clarification on the scope of professional misconduct (although one would have thought that misconduct of the types discussed are blindingly obvious). There will be guidance good practice in the handling of complaints of bullying, harassment and sexual harassment.
Whilst it is recommended that there is a duty to report serious misconduct, it is also recognised that victims and their confidantes would be reluctant to report and so there will be an exemption for them, and encouragement for reporting by others. The trigger to report will be a reasonable suspicion and sanctions are proposed for not reporting, though how that is policed is as yet unknown.
There is also, and rightly so, a heavy emphasis on the protection and safeguarding of pupils, mini pupils and students. It is recommended that proper procedures are put in place for work experience and that, in the event of a sexual relationship, this will be regarded as serious misconduct.
There are proposals for the process of handling complaints with time limits, victim support services, specialist training for BSB teams likely to investigate these complaints, review of current case handling and more.
Tribunal proceedings are recommended because the decision making is quicker The report also recommends new powers on costs and compensation. Online abuse is recognised also in that regulatory action is proposed in respect of this.
There will be sanctions for the unacceptable behaviour described in the report. The sanctions considered are significant in order to act as deterrent. The report recommends that any previous findings be considered regarding career progression (for example silk applications or judicial appointments.) There are recommendations in respect of judicial bullying too.
Finally, it is proposed that a Commissioner for Conduct be appointed purely to tackle the bullying , harassment and sexual harassment that exists at the Bar.
It is to be hoped that the recommendations will be put into practice both at the highest levels and within chambers, however that is no easy task as is recognised in the report-
…………..some chambers have not provided for the power of expulsion or suspension within their constitution such that perpetrators of serious misconduct have remained in practice at their set. Other chambers that do have powers of expulsion and suspension require such a ‘super majority’ that it is virtually impossible to enforce…. There is no model chambers constitution and no standardised best practice approach to dealing with investigations and sanctions within chambers.
The general tenor of the recommendations is that this level of serious behaviour will not go unpunished and that constitutions will require amendment to avoid the previous difficulties of enforcement.
The mammoth task of putting the Harman Report recommendations into effect must be conducted if we are to improve the working lives of the less professionally powerful and remove that barristerial casting couch. No one at the Bar should feel that they have to engage in non-consensual activity or be subjected to any form of bullying or otherwise abusive behaviour in order to further or safeguard their career.
It is to our collective shame that such a report and its recommendations have proved necessary. The Bar Council have recognised the severity of the problem and expressed its determination to deal with it. It remains the responsibility of all of us to ensure that we put the appropriate policies and procedures in place in our chambers to rid ourselves of this problem.
Elissa Da Costa-Waldman MCIArb, Westgate Chambers
