by Peter Murphy
‘For Mary Faulks, it was,’ Wesley replied. ‘She has had to cope with that throughout her career. She has never married, never had children. She may look at you and Harriet and see a new generation changing the rules, a generation of female barristers with a sense of entitlement, who don’t feel they have to impersonate men and infiltrate the Old Boys’ Club in order to succeed. I am worried that she may resent others having what was denied to her. All she has is the Bar. She may feel she must protect it at all costs, and she may feel that touting for work is not to be tolerated.’
‘What Bernard means,’ Overton said, ‘but is being too delicate to say directly, is that she would probably take a very dim view of a woman using her sexuality, however indirectly, as a means of attracting work.’ Seeing Ginny about to react, he added quickly: ‘I know that is not what you are doing, Ginny. I am talking of her perception. I think the whole taboo about attractive feminine appearance comes down to that in the end, and it is something she may be sensitive about.’
Ginny sat back in her chair, deflated.
Wesley laid the notebook back down on the desk.
‘So, that’s what we are up against,’ he said. ‘As to strategy, I think Miles and I are agreed that we need to isolate Kenney as far as possible. We need to appeal to Figg, Stanislas, and Lancaster to take a more enlightened approach. If we succeed in that, we have a majority of three to two, and if we can isolate Kenney entirely, I have a feeling that Mary might go with the majority view. As Miles says, there is nothing malicious about her. We just have to make her look at the situation through different eyes. I can’t believe she would want the next generation of women to have to live as she has, and by now, I think she must realise on some level that the next generation has already decided to make its own rules.’
‘It’s not too late for her to join with us,’ Ginny said.
‘No, indeed,’ Wesley replied. ‘It’s not too late. It’s just a matter of whether she can bring herself to do it.’
‘Will you be asking Ginny and me to speak to the Committee?’ Ben enquired.
‘Only if they ask,’ Wesley replied. ‘You have given them written statements which cover everything they could reasonably want to know, and you will be there if they have any questions. I’m hoping it won’t be necessary.’
‘What is your strategy for isolating Kenney?’ Ginny asked.
Wesley smiled broadly. ‘I am going to make him nail his colours to the mast as a die-hard traditionalist,’ he replied. ‘Then I am going to make his colours look ridiculous, in the hope of making him angry.’
Overton joined in the smile. ‘Don’t ask him any more,’ he suggested. ‘He won’t tell you until it’s over.’
‘If he looks ridiculous and becomes angry,’ Wesley said, ‘he will be less convincing to the other members of the Committee, and they will feel less reluctant to disagree with him.’
‘That sounds like a potentially risky strategy,’ Ben said.
‘Potentially,’ Wesley replied, ‘it is disastrous. But only if it goes wrong.’
47
Bernard Wesley and Miles Overton walked briskly up the short flight of stone steps which led into Middle Temple Hall, Ben and Ginny following closely behind them. Wesley and Overton were Benchers of the Inn, and were therefore on equal terms with the members of the Committee. In any normal circumstances, the thought of addressing an Inn committee, especially together and on the same side of the case, would have removed any feelings of anxiety. But in this case, the lives and welfare of two young barristers in their chambers, and those of their partners, hung in the balance. In reality, this was a trial, or at least a preliminary disciplinary hearing. Both men felt a strong sense of obligation and a strong determination to succeed. They had prepared as thoroughly as they could; they had analysed every argument and counter-argument; but despite the reassurance they had offered to Ben and Ginny they knew that success was far from certain. The issue was a delicate one, and the Bar was still the most conservative of professions.
They made their way to the Parliament Chamber, an elegant, ornately panelled room in the heart of the Bencher’s quarters, in which meetings of the Inn’s governing body were held. They found the five members of the Committee taking their seats at the top table, by the window which looked out over the Middle Temple garden and led the eye naturally down to the Embankment and the River. The Committee’s chairman, Lord Justice Kenney, sat in the middle, his colleagues flanking him on both sides. To his right sat Andrew Figg and Raymond Stanislas; to his left Mr Justice Lancaster and Mary Faulks – clad in heavy, dour, unbroken black with no suggestion of ornamentation. Wesley and Overton duly noted her appearance and exchanged a brief glance. Each member of the Committee had been provided with a file in which the written statements made by Ben and Ginny, and the written submissions made by the two heads of chambers on their behalf were included. Wesley and Overton sat down in front of the top table, with Ben and Ginny behind them.
Lord Justice Kenney welcomed Wesley and Overton politely. He turned over the pages of the submissions without undue haste. He removed his reading glasses and placed them on the table in front of him.
‘Bernard, Miles, I am sure you understand the Committee’s concern. Both Schroeder and Miss Castle are openly involved in an intimate relationship with a solicitor, or someone employed by a solicitor. If the Bar permits associations between barristers and those employed by firms of solicitors, it is effectively condoning touting for work. Touting has always been against our code of conduct. It brings the Bar into disrepute, and both Miss Castle and Schroeder, as members of the Bar, must be fully aware of that.’
Overton gave the slightest of nods towards Wesley, confirming that, as they had agreed, Wesley would begin, and he would make additional points as needed.
‘Yes, George, thank you. I do understand the concern you have expressed,’ Wesley began. His stomach felt taut, but his voice was smooth and confident; it betrayed no nervousness, but on the contrary exuded a quiet confidence.
‘I would like to deal, not so much with the traditional view of things, but with the reality of contemporary life – not just life at the Bar, but life in the more general sense, life in the England of today in which the Bar works. I ask your indulgence if I approach what I have to say in what may perhaps seem an unusual way. Please allow me to tell you a story, and then ask you a question. Once upon a time, there was a barrister. Let’s call him Kenney.’
Lord Justice Kenney looked none too pleased about being required to lend his name to the hero of Wesley’s story, but Wesley was a senior Silk, and in the privileged inner sanctum of the Inn, every bit his equal. It would have seemed arrogant, even churlish to protest.
‘Kenney has been in practice for almost twenty-five years,’ Wesley continued. ‘He has a good practice and an unblemished reputation. He is married and has a daughter, aged twenty-one. She is an actress; let’s call her Jane. Jane has an admirer; let’s call him Walter. Walter saw Jane playing Ophelia at the Old Vic a year or so ago, and was instantly smitten. He had never seen a more beautiful girl, or a more compelling actress. He sent flowers and champagne to her dressing-room. He wrote her letters expressing his admiration. He came to see the show at least twice a week until it closed, and when it closed, he came to see her playing Cecily Cardew at the Theatre Royal.’
He looked across the table.
‘The Importance of Being Earnest,’ he added confidentially, for the benefit of Figg and Stanislas, who were looking blank. ‘Oscar Wilde.’
Lord Justice Kenney looked briefly up at the ceiling.
‘After some time,’ Wesley continued, ignoring the gesture, ‘Walter realised that sending compliments and flowers was not enough, and that he was no longer satisfied to see Jane only on the stage from the front row of the stalls. With the aid of a door attendant who was not averse to being slipped the odd ten bob note, Walter inveigled his way backstage on t
he pretence of being an important theatrical agent, and implored a few moments of her time to declare his love for her – for he knew now that this was no mere passing fancy, no mere illusion induced by the magic of the stage lights.’
Out of the corner of his eye, Wesley saw Miles Overton smiling behind a page of his file.
‘To Walter’s everlasting joy, Jane gladly accepted his protestations of ardour and, within a short space of time, she took him home to meet her parents, Kenney and Mrs Kenney. They were charmed by Walter, and they were delighted that Jane had found a young man who doted on her so completely. A date was set for their wedding.’
Wesley paused for some seconds.
‘The only problem,’ he said, ‘is that Walter is a partner in a firm of solicitors which regularly instructs members of the Bar.’
Mr Justice Kenney exhaled with some show of frustration. Figg and Stanislas looked at each other with raised eyebrows. Mr Justice Lancaster was already smiling broadly.
‘Kenney now comes before this Committee and asks for your opinion on this question: whether he may attend the wedding and thereafter maintain normal social relations with his son-in-law without being disbarred; and whether, in the event of Walter and Jane having children in a few years’ time, he may have some access to his grandchildren; and if so, on what conditions.’
There was a long silence. Andrew Figg tapped his pencil thoughtfully on the table.
‘Does Walter’s firm already instruct Kenney?’ he asked.
‘Let us assume not,’ Wesley replied. ‘But, of course, he has it in his power to do so.’
‘Even so, there is no suggestion that any actual touting is involved?’
‘There is not,’ Wesley confirmed.
‘The rule is surely not designed to interfere with normal family relationships?’ Raymond Stanislas asked.
There was no immediate reply.
‘I would hardly describe what Miss Castle and Schroeder are involved in as normal family relationships,’ Kenney said.
‘I am not sure we can make that kind of distinction in this day and age,’ Stanislas replied. ‘We are not here to sit in judgment on their moral behaviour.’
‘Be that as it may, the question is ridiculous,’ Kenney interjected. His voice was raised, not quite to the level of shouting, but enough to indicate that something had annoyed him, whether the use of his name, or the story, or something less obvious. Only Bernard Wesley and Miles Overton knew that it was the reaction Wesley had done his best to provoke.
‘I quite agree, George,’ Wesley replied blandly. ‘But it is ridiculous because the rule that requires the question to be asked is ridiculous.’
Kenney banged a fist down on the table.
‘No. The rule is not ridiculous,’ he insisted. ‘The Bar is right to come down hard on barristers who tout for work. Work should come to a barrister as a result of merit, not as a result of his social connections. Any relationship which gives rise to the appearance of touting should be carefully avoided.’
‘Just a minute, though,’ Mr Justice Lancaster intervened. ‘If you take that to its logical conclusion, it would mean that a man whose father is a solicitor could not come to the Bar. I can personally recall several cases in which men in that position became barristers, and no one ever accused them of touting for work.’
‘There have been many such cases,’ Stanislas agreed, ‘and the same might be said of barristers whose fathers are judges. It might be said that solicitors might send them work to curry favour with the judge.’
‘It would mean that a member of the Bar could not join a golf club without inquiring whether the club had members who were solicitors,’ Figg added. ‘I am not sure I ought to say anything else in case I incriminate myself.’
Kenney shook his head, but said nothing.
Miles Overton suddenly sat up in his chair.
‘If I may, George,’ he said, ‘I would like to address what I see as the fundamental point which Bernard’s story compels us to consider. That point is, surely, that having a social relationship with a solicitor is not necessarily the same thing as touting for work.’
‘Bernard’s story is quite different from the situations in which Miss Castle and Schroeder find themselves,’ Kenney replied. ‘In Bernard’s story the relationship is at one remove. It is not directly between the barrister and the solicitor.’
Overton looked up sharply.
‘I have a daughter-in-law,’ he said. ‘I certainly regard myself as having a direct relationship with her. What if she were a solicitor? I fail to see the distinction. Is your advice to Kenney that he may not attend the wedding, and may see his grandchildren only in Walter’s absence?’
‘That is patent rubbish!’ Kenney shouted. ‘I didn’t say that at all. I am offended to be asked the question.’
Overton appeared completely unperturbed.
‘I will tell you what offends me, George,’ he said quietly. ‘What offends me is the implication that Bernard and I, as heads of chambers, cannot be relied on to recognise a case of touting for work if we see it, and to take appropriate action where necessary. Virginia came to me of her own volition and told me that a relationship had developed between herself and Michael Smart. That was long before they began to live together. Smart had already been instructing her for a considerable time in a variety of serious cases, and it was obvious that he did so because he recognised her abilities as an advocate, not because of any feelings they might have for each other. She told me she was quite willing to decline further instructions from him if I thought that would be the thing to do. I told her that I saw no need for that at all. And I was confident to say so because I know Virginia. She has the highest professional standards. She would not dream of touting for work, and she has not done so.’
‘Ben Schroeder’s case is very similar,’ Bernard Wesley added. ‘There are differences, of course. Ben and Jess are not living together, though their relationship is an intimate and very close one. Jess is not a solicitor; she is a clerk working for a solicitor, and I can assure you that her employer, Barratt Davis, is not a man to look to his clerks to advise him about which barristers he should brief. He was already instructing Ben Schroeder. That is how Ben and Jess met. But those details seem to me to be differences without a distinction. Like Miles, I can assure you that I would not condone touting for work in my chambers under any circumstances. But that is not what is going on here.’
The members of the Committee looked at each other. For some moments Lord Justice Kenney seemed to be at a loss for words.
‘What you say may well be true,’ he said eventually. ‘But it seems to me that the approach you are proposing may encourage others to think that social relations between barristers and solicitors can take place without any restriction. That is bound to lead to abuses. It may have the effect of dragging the Bar down to the level of the street trader.’
‘I’m not trying to drag the Bar down, George,’ Wesley replied. ‘I am merely trying to drag it, however unwillingly, into the twentieth century.’
Wesley turned to face Mary Faulks. He had been observing her, using his peripheral vision, throughout the meeting. She seemed pale and tense, and Wesley had an instinct that she was fighting to suppress some emotion; what it was, he could not tell.
‘I suppose what I’m trying to say is this,’ he concluded. ‘Barristers and solicitors see more of each other than they used to. Perhaps in the old days, they tended to move in different social circles. There may even have been some class distinction, or at least, perhaps we liked to think there was. That is less true today. I am quite in favour of having a rule against touting for work. But I would like to see the rule prohibit conduct in which touting actually occurs, and not apply to cases in which someone imagines that it might occur. We trust barristers a great deal to behave ethically in all kinds of situations, and quite rightly. Let’s trust them in this situat
ion also.’
He looked directly at Mary for some time. Eventually, she turned slowly towards Lord Justice Kenney.
‘It seems to me,’ she said quietly, ‘that being a barrister – as a man or a woman, but especially as a woman – is difficult enough as it is, without having to endure the threat of being punished for something one hasn’t done.’
Mr Justice Lancaster smiled again.
‘Mr Chairman,’ he said, ‘may I suggest that Bernard and Miles withdraw with Miss Castle and Schroeder, and give us a few moments to consider their cases?’
Lord Justice Kenney nodded his assent.
* * *
When they returned, some ten minutes later, Lord Justice Kenney seemed subdued. He made a pretence of finding his place in his notes.
‘We have listened carefully to what you have had to say,’ he said slowly. ‘The view of the Committee is that all such cases must continue to be dealt with on their merits. But in this case, we find that no criticism can be levelled against either Miss Castle or Schroeder, and we see no reason why they should not continue to receive instructions from the solicitors concerned.’
‘And one member of the Committee,’ Mr Justice Lancaster added, ‘if he may be permitted a short concurring judgment, would like to wish them well.’
‘Two members,’ Mary Faulks said. ‘Two members would like to wish them well.’
‘Thank you,’ Bernard Wesley said, as they rose to leave.
‘If I might just add one thought, George,’ Miles Overton said. ‘The approach of dealing with each case on its merits may lead the Committee to make some very fine distinctions. If I might offer a modest word of caution, Bernard and I are by no means sure that the present rule could survive a properly framed legal challenge.’
‘Legal challenge?’ Kenney spluttered. ‘No barrister is going to sue his Inn of Court, and no member of the Bar would act for him if he did.’
Overton shrugged.