“I don’t want this maniac as my lawyer,” a man named Victor Martinez said to a judge in a case in New York in 2006. He was referring to his defence lawyer, Mark Brenner. According to a complaint against Brenner to be heard by a board that monitors court-appointed lawyers, when Martinez tried to sack him in court, wondering out loud if he “smokes crack”, Brenner allegedly kicked him. “Mr Brenner, come on,” Justice Troy Webber said, “what’s wrong with you?”

Kicking clients, it goes without saying, is against the professional rules in all jurisdictions. But what are the rules that govern the advocate-client relationship? In England and Wales, barristers are governed by a code of conduct. A barrister has an overriding duty to the court to act with independence in the interests of justice; this duty has statutory force for everyone who exercises a right of audience in any court (Courts and Legal Services Act 1990 as amended in 1999).

The code doesn’t deal specifically with prohibiting violence against clients. It does, though, say that the barrister must “promote and protect fearlessly” and by “all proper and lawful means” the best interests of his client. In a case in 1967, Lord Denning said that the barrister’s obligation was to represent his client “no matter how great a rascal the man might be”. It would be difficult to argue that there are any situations in which a client’s interests would ever be advanced by his being kicked.

Not surprisingly for a learned profession famed globally for the high quality of its advocacy, the Bar’s code is very thorough and comprehensive. For example, barristers mustn’t adduce evidence obtained other than “from or through” the client, and a barrister mustn’t make a submission that he does not consider to be properly arguable.

Additionally, a barrister mustn’t make statements or ask questions that are “merely scandalous” or intended only “to vilify, insult or annoy” anyone; and mustn’t impugn a witness unless in cross-examination he has given the witness an opportunity to answer the allegation.

In general, any ordinary misjudgement by an advocate about how he’s conducting a case won’t be enough to allow an appeal if the client loses. However, a criminal conviction may be quashed as unsafe when the accused seems to have been prejudiced by “flagrantly incompetent advocacy”.

While clients mustn’t be kicked, neither must lawyers be assaulted. In 1979, the Supreme Court Appellate Division in New York held that a defence lawyer can withdraw from a case if intimidated by the threat of violence from a client. The court held that a legal aid counsel was allowed to withdraw after her client, who’d already assaulted another legal aid counsel, threatened her with bodily harm.

Lawyers, though, don’t enjoy total protection from clients. When he was a young barrister in 1806, Lord Campbell took on a client accused of a crime. After consulting with the prisoner in the dock, he successfully represented him, won his acquittal and his freedom. But when the victorious barrister put his hand in his pocket after the case he found his wallet had gone.

Professor Gary Slapper is Director of the Centre for Law at The Open University

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