Roddy Dunlop KC

The age of social media has brought many benefits. Members of the public are able to engage with a number of issues – from the banal to the fundamental – in a way that was not previously possible. This is to the benefit of us all.

But as with any cure, it has its unwelcome side-effects. Those in public life should be expected to tolerate criticism, but not abuse. Online abuse is now so prevalent that it has become something that is almost accepted, indeed acceptable. It is not and should not be seen as such.

One particular variant of this, referable to my own sphere, has been an increasing tendency to identify counsel with their clients. Regrettably, indeed disappointingly, this has not been the sole province of the keyboard warrior: our politicians and media have engaged in this as well.

Witness the attacks on the current Prime Minister, Sir Keir Starmer, for having dared, in his past career as a lawyer, to have acted for some “bad people”.

See also the ongoing theme of “lefty lawyers”, and the outrageous description of the Court of Appeal judges who had ruled that the UK government would require the consent of Parliament to give notice of Brexit as “enemies of the people”.

Lawyers are not immune from criticism. Nor are the judiciary. When they misbehave, they must, and will, be held to account. But they are not misbehaving by doing their job – which in this context means (for lawyers) representing clients to the best of their ability, and (for judges) applying the law as the judges understand it to be.
The United Nations’ Basic Principles on the Role of Lawyers make this clear: “Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions”.

This is basic, and fundamental. Everyone is entitled to representation. Arguing a client’s case does not mean that one espouses that case. Were it otherwise, no-one accused of murder, of rape, of paedophilia, would ever obtain legal representation. And before you respond “quite right too”, please bear in mind that many innocent people are falsely accused, that everyone is entitled to the presumption of innocence, and that even the guilty are, in a civilised society, entitled to challenge the case brought by the state against them.

This is most pertinent in criminal cases: no-one likes a criminal. But the same applies in civil matters. The courts are regularly faced with issues which provoke – rightly and understandably – deep and genuine emotions.

Counsel who argue on either or any side of such cases are just doing their job. If they present an argument with which you disagree, feel free to express that disagreement, trenchantly or otherwise. But please: do not fall into the error of identifying counsel with their clients, or their causes. Play the ball, not the advocate.

This article first appeared in The Scotsman