ICCA Bar Course Professional Ethics

What do the core duties do?

Underpin entire regulatory framework; set mandatory standards; define core elements of professional conduct

What do the BSB outcomes show?

Factors which BSB regulated persons or unregistered barristers should have in mind when considering how Core Duties, Conduct Rules or Bar Qualification Rules should be applied

What are Conduct Rules?

Supplement Core Duties and are mandatory – disciplinary proceedings may be taken if there is believed to be a breach – but conduct rules are not exhaustive (where a specific rule does not apply. Reference should be made to core duties. In situations where specific Rules do apply, it is still necessary to consider the Core Duties, since compliance with Rules alone will not necessarily be sufficient to comply with the Core Duties)

What is the purpose of Guidance?

In carrying out obligations / meeting requirements of the handbook, must have regard to any relevant guidance which will be taken into account by the BSB if there is an alleged breach / non-compliance with the obligations

Who do the Core Duties apply to?

Apply to all BSB regulated persons and unregistered barristers except where stated otherwise

Who do the Conduct Rules apply to?

Apply to all BSB Regulated Persons.

Rules rC3.5, rC4, rC8, rC16, rC19 and rC64 to rC70 (and associated guidance to those rules) and the guidance on Core Duties also apply to unregistered barristers. If an unregistered barrister practises as a barrister as set out in rS9 then those rules which apply to practising barristers shall also apply.

When do the Core Duties apply?

Apply when practising or otherwise providing legal services. In addition, CD5 (must not behave in a way which lis likely to diminish the trust and confidence which the public places in your or in the profession) and CD9 (must be open and co-operative with your regulators) apply at all times.

What are considered legal services?

Includes legal advice, representation and drafting or settling any statement of case, witness statement, affidavit or other legal document.

What are not considered legal services?

a) sitting as a judge or arbitrator or acting as a mediator;

b) lecturing in or teaching law or writing or editing law books articles or reports;

c) examining newspapers, periodicals, books, scripts and other publications for libel, breach of copyright, contempt of court and the like;

d) communicating to or in the press or other media;

e) giving advice on legal matters free to a friend or relative or acting as unpaid or honorary legal adviser to any charitable benevolent or philanthropic institution;

f) in relation to a barrister who is a non-executive director of a company or a trustee or governor of a charitable benevolent or philanthropic institution or a trustee of any private trust, giving to the other directors, trustees or governors the benefit of their learning and experience on matters of general legal principle applicable to the affairs of the company institution or trust;

g) early neutral evaluation, expert determination and adjudications

Who is responsible for the conduct and work of BSB authorised and authorised non-BSB individuals?

·      Personally responsible for own conduct and work

·      May still delegate/outsource discrete tasks (e.g. research) with others well-equipped to provide; but still remain personally responsible for that work

·      Responsible for service provided by all those who represent you in your dealings with your client (e.g. clerks / other employees)

What does the Professional Statement do?

·      It “describes what barristers should be able to do upon entry to the profession: the essential knowledge, skills, attributes and behaviours that all barristers should be able to demonstrate when issued with a full practising certificate”

·      The Professional Statement may be used as an evidential point of reference when a breach of the requirements for competent practice (set out in the Code of Conduct) has been raised

What are the Core Duties?

·      CD1 You must observe your duty to the court in the administration of justice [CD1]. 

·      CD2 You must act in the best interests of each client [CD2]. 

·      CD3 You must act with honesty, and with integrity [CD3]. 

·      CD4 You must maintain your independence [CD4]. 

·      CD5 You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession [CD5]. 

·      CD6 You must keep the affairs of each client confidential [CD6]. 

·      CD7 You must provide a competent standard of work and service to each client [CD7] 

·      CD8 You must not discriminate unlawfully against any person [CD8]. 

·      CD9 You must be open and co-operative with your regulators [CD9]. 

·      CD10 You must take reasonable steps to manage your practice, or carry out your role within your practice, competently and in such a way as to achieve compliance with your legal and regulatory obligations [CD10].

Do any of the duties override another?

CD1 overrides any other core duty, if and to the extent the two are inconsistent

If you are an unregistered barrister and supply legal services to any inexperienced client, before supplying such services what must you explain? (rC144)

that:

.a (unless you are supplying legal services pursuant to Rule S12) you are not acting as a barrister;

.b you are not subject to those parts of the Code of Conduct and other provisions of this Handbook which apply only to BSB authorised persons;

.c the Bar Standards Board will only consider reports about you which concern the Core Duties or those parts of the Code of Conduct and other provisions of this Handbook which apply to you;

.d (unless you are covered by professional indemnity insurance) you are not covered by professional indemnity insurance;

.e they have the right to make a complaint, how they can complain, to whom, of any time limits for making a complaint but that they have no right to complain to the Legal Ombudsman about the services you supply; and

.f in respect of any legal advice you provide, there is a substantial risk that they will not be able to rely on legal professional privilege.

You must get written confirmation from the client that you have given this explanation.

When does rC144 not apply? (rC145)

rC144 does not apply to you if you supply legal services:

.1 as an employee or manager of a regulated entity;

.2 as an employee or manager of a body subject to regulation by a professional body or regulator;

.3 as provided for in Section S.B9 (Legal Advice Centres);

.4 pursuant to an authorisation that you have obtained from another approved regulator; or

.5 in accordance with Rules S13 and S14.

Who is an inexperienced client?

Includes any individual or other person who would, if you were a BSB authorised person, have a right to bring a complaint pursuant to the Legal Ombudsman Scheme Rules.

Who is entitled to complain to the Legal Ombudsman if you are a BSB authorised person (gC154)?

.1 an individual; or

.2 a business or enterprise that was a micro-enterprise within the meaning of Article 1 and Article 2(1) and (3) of the Annex to Commission Recommendation 2003/361/EC (broadly a business or enterprise with fewer than 10 employees and turnover or assets not exceeding €2 million), when it referred the complaintto you; or

3 a charity with an annual income net of tax of less than £1 million at the time at which the complainant refers the complaint to you; or

.4 a club, association or organisation, the affairs of which are managed by its members or a committee of its members, with an annual income net of tax of less than £1 million at the time at which the complainant refers the complaint to you; or

.5 a trustee of a trust with an asset value of less than £1 million at the time at which the complainant refers the complaint to you; or

.6 a personal representative or beneficiary of the estate of a person who, before they died, had not referred the complaint to the Legal Ombudsman.

What is the duty to not mislead clients and potential clients? (rC19)

If you supply, or offer to supply, legal services, you must not mislead, or cause or permit to be misled, any person to whom you supply, or offer to supply, legal services about:

.1 the nature and scope of the legal services which you are offering or agreeing to supply;

.2 the terms on which the legal services will be supplied, who will carry out the work and the basis of charging;

.3 who is legally responsible for the provision of the services;

.4 whether you are entitled to supply those services and the extent to which you are regulated when providing those services and by whom; or

.5 the extent to which you are covered by insurance against claims for professional negligence.

What may be the consequence of knowingly or recklessly advertising material which is inaccurate or likely to mislead? (gC57)

Could also result in you being in breach of Rule rC19. You should be particularly careful about making comparisons with other persons as these may often be regarded as misleading

How could you breach rC19 as an unregistered barrister? (gC60)

If you are an unregistered barrister, you would breach Rule rC19 if you misled your client into thinking that you were providing legal services to them as a barrister or that you were subject to the same regulation as a practising barrister. You would also breach the rule if you implied that you were covered by insurance if you were not, or if you suggested that your clients could seek a remedy from the Bar Standards Board or the Legal Ombudsman if they were dissatisfied with the services you provided

What must a pupil not do to ensure they do not mislead? (gC62)

If you are a pupil, you should not hold yourself out as a member of chambers or permit your name to appear as such. You should ensure the client understands your status.

When may you carry out a reserved legal activity? (rS6)

You must not carry on any reserved legal activity unless you are entitled to do so under the LSA

You must not permit any third party who is not authorised to provide reserved legal activities to provide such reserved legal activities on your behalf (rS7).

If you are an individual who does not have a practising certificate or you are an entity not authorised or licensed to provide reserved legal activities, what may you not do? (rS8)

.a you may not practise as a barrister or a registered European lawyer or as a BSB entity (as appropriate); and

.b you are not authorised by the Bar Standards Board to carry on any reserved legal activity.

When are you considered to be practising as a barrister or a registered European lawyer, or a BSB entity? (rS9)

if you are supplying legal services and:

.1 you are an individual and you hold a practising certificate; or

.2 you hold yourself out as a barrister or a registered European lawyer (as appropriate) or

.3 you are an entity and you have been authorised or licensed to provide reserved legal activities in accordance with Section 3.E; or

.4 you act as a manager of, or have an ownership interest in, an authorised (non-BSB) body and as such you are required by the rules of that body’s Approved Regulator to hold a practising certificate issued by the Bar Standards Board (as the case may be).

 

Rule rS9.1 above does not apply to you if you are a pupil without a provisional practising certificate if and insofar as you accept a noting brief with the permission of your pupil supervisor or head of chambers or HOLP

In what capacities may you carry on reserved legal activities or supply other legal services? (rS16)

.1 as a self-employed barrister, subject to the limitations imposed by Section 3.B3;

.2 as a BSB entity subject to the limitations imposed by Section 3.B4;

.3 as a manager of a BSB entity or as an employed barrister (BSB entity), subject to the limitations imposed by Section 3.B5;

.4 as a manager of an authorised (non-BSB) body or as an employed barrister (authorised non-BSB body), subject to the limitations imposed by Section 3.B6;

.5 as an employed barrister (non authorised body), subject to the limitations imposed by Section 3.B7; or

.6 as a registered European lawyer in any of the above capacities, in which case the equivalent limitations that would have applied if you were practising as a barrister shall apply to your practice as a registered European lawyer.

What restrictions apply to barristers of less than three years’ standing? (rS20)?

if you are a barrister of less than three years’ standing, you may:

.1 only supply legal services to the public or exercise any right of audience by virtue of authorisation by the Bar Standards Board; or

.2 only conduct litigation by virtue of authorisation by the Bar Standards Board, if your principal place of practice (or if you are practising in a dual capacity, each of your principal places of practice) is either:

.a a chambers or an annex of chambers which is also the principal place of practice of a relevant qualified person who is readily available to provide guidance to you; or

.b an office of an organisation of which an employee, partner, manager or director is a relevant qualified person who is readily available to provide guidance to you.

What restrictions apply to employed barristers exercising a right of audience or conducting litigation? (rS21)

If you are an employed barrister (non-authorised body) and you are only exercising a right of audience or conducting litigation for those persons listed at Rule rS39.1 to rS39.6, then the place of practice from which you perform such duties is only required to be an office of an organisation of which an employee, partner, manager or director is a relevant qualified person who is readily available to provide guidance to you if you are of less than one year’s standing.

Where you are a barrister intending to supply legal services to the public, when is a person considered a qualified person for the purpose of rS20? (rS22)

.1 Where you are a barrister intending to supply legal services to the public, a person shall be a qualified person for the purpose of Rule rS20 if they:

.a have been entitled to practise and have practised as a barrister (other than as a pupil who has not completed pupillage in accordance with the Bar Qualification Rules) or as a person authorised by another Approved Regulator for a period (which need not have been as a person authorised by the same Approved Regulator) for at least six years in the previous eight years; and

.b for the previous two years have made such practice their primary occupation; and

.c are not acting as a qualified person in relation to more than two other people; and

.d has not been designated by the Bar Standards Board as unsuitable to be a qualified person.

Where you are a barrister exercising a right to conduct litigation in England and Wales, when is a person considered a qualified person for the purpose of rS20? (rS22)

Where:

.a you are a barrister exercising a right to conduct litigation in England and Wales, a person is a qualified person for the purpose of Rule rS20 if they:

.i have been entitled to practise and have practised as a barrister (other than as a pupil who has not completed pupillage in accordance with the Bar Qualification Rules) or as a person authorised by another Approved Regulator for a period (which need not have been as a person authorised by the same Approved Regulator) for at least six years in the previous eight years; and

.ii for the previous two years have made such practice their primary occupation; and

.iii are entitled to conduct litigation before every court in relation to all proceedings; and

.iv are not acting as a qualified person in relation to more than two other people; and

.v have not been designated by the Bar Standards Board as unsuitable to be a qualified person.

Who may a manager of a BSB entity or an employed barrister supply legal services to? (rS32)

.1 the BSB entity; or

.2 any employee, director, or company secretary of the BSB entity in a matter arising out of or relating to that person’s employment;

.3 any client of the BSB entity;

.4 if you supply legal services at a Legal Advice Centre, clients of the Legal Advice Centre; or 

.5 if you supply legal services free of charge, members of the public.

When may an unregistered barrister use the title “barrister"?

When not providing legal services.

You can use the titles “lawyer” or “legal adviser”. If you are self-employed, or work for an unregulated employer, you should not use the title “counsel”. However, if you provide legal services only to your employer you may use titles commonly used in companies, such as legal counsel, general counsel, corporate counsel. You may also use the description “of Counsel” if you work for an employer which is an authorised person under the Legal Services Act.

In a CV, you can state that you qualified as a barrister.

What does CD1 (must observe duty to court in administration of justice) entail?

oC1 - The court is able to rely on information provided to it by those conducting litigation and by advocates who appear before it.

oC2 - The proper administration of justice is served

oC3 - The interests of clients are protected to the extent compatible with outcomes oC1 and oC2 and the Core Duties.

oC4 - Both those who appear before the court and clients understand clearly the extent of the duties owed to the by advocates and those conducting litigation and the circumstances in which duties owed to clients court

oC5 – The public has confidence in the administration of justice and in those who serve it

What does rC3 (owe a duty to the court to act with independence in the interests of justice) entail?

This duty overrides any sent obligations which you may have (other than under criminal law).

You must not:

.1 Knowingly or recklessly mislead or attempt to mislead the court (rC3.1) (this only applies when you are acting as an advocate)

.2 Abuse your role as an advocate (rC3.2); or)

.3 Waste the court’s time (rC3.3)

What does knowingly misleading the court include?

Knowingly misleading the court includes “being complicit in another person misleading the court” (gC4.1). It is your knowledge and not your belief that it is important here. Your duty to the court does not prevent you putting forward your client’s case simply because you do not believe the facts are as your client states them to be. It is not for you to decide whether your client’s case is to be believed.

Simply put, you cannot put forward anything you know to be untrue.

What does it mean to recklessly mislead the court?

Recklessly misleading the court means “being indifferent to the truth, or not caring whether something is true or false” (gC4.3).

What obligations does the duty to not mislead the court include? (rC6)

You must not make submissions, representations or any other statement, or ask questions or suggest facts to witnesses which you know, or instructed are untrue or misleading (rC6.1).

Nor must you call witnesses to give evidence or put affidavits or witness statements to the court which you know, or are instructed, are untrue or misleading, unless you make clear the true position as known or instructed to you (rC6.2).

How does your duty to act in the best interests of each client (CD2) interact with your duty to the court?

Rule rC4 makes it clear that your duty to act in the best interests of each client (CD2) is subject your duty to the court. However, the fact that your duty to the court takes precedence over your duty to act in the best interests of each client does not require you to breach client confidentiality. This is made clear by rule rC5 which states that “your duty to the court does not require you to act in breach of your duty to keep the affairs of each client confidential”.

Where you are acting as an advocate, what does your duty not to abuse your role include? (rC7)

the following obligations:

.1 you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;

.2 you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination;

.3 you must not make a serious allegation against any person, or suggest that a person is guilty of a crime with which your client is charged unless:

.a you have reasonable grounds for the allegation; and

.b the allegation is relevant to your client’s case or the credibility of a witness; and

.c where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary.

.4 you must not put forward to the court a personal opinion of the facts or the law unless you are invited or required to do so by the court or by law.

What must you do if you become aware that your client has a document which should be disclosed but has not been? (gC13)

You cannot continue to act unless your client agrees to the disclosure of the document. In these circumstances you must not reveal the existence or contents of the document to the court.

What must you do if your client tells you they are guilty but nevertheless want to enter a not guilty plea?

Firstly, you would not be entitled to disclose the fact that your client had told you they had committed the crime without their consent (gC9.1).

 

Secondly, you could continue to represent your client on a not guilty plea, so long as you were only to test the reliability of the prosecution evidence through cross-examination and address the jury to the effect that the prosecution had not succeeded in making

them sure of your client’s guilt (gC9.2).

 

Thirdly, you would be misleading the court if you were to set

up a positive case, inconsistent with guilt (gC10), for example by:

1. suggesting to prosecution witnesses, calling your client or your witnesses to show; or submitting to the jury, that your client did not commit the crime (gC10.1);

2. suggesting that someone else had committed the crime (gC10.2); or

3. putting forward an alibi (gC10.3).

What must you do if you represent a client at their sentencing hearing and they bring to your attention a conviction of which the prosecution and court were unaware?

Guidance gC12 makes it clear that you must not disclose the conviction to the court without your client’s consent, but it goes on to distinguish between two situations, with the distinction turning on the presence or absence of a mandatory sentence.

 

Where, if the court knew of the conviction, it would be required by law to pass a mandatory sentence, you must advise your client that if they fail to authorise you to disclose the conviction, you would have no choice but to withdraw from the case (gC12).

 

In any other case, you can continue to represent your client, but you must not say anything that will mislead the court (i.e., anything that amounts to an express or implied denial that the conviction exists) (gC12). You could not, for example, advance a positive case of previous good character knowing that there are undisclosed prior convictions (gC12). Nor could you give a misleading answer to any question from the court (gC12). If your client refuses to allow you to answer a question from the court truthfully, you must withdraw from the case. You must explain this to your client (gC12).

 

If you must withdraw, Guidance gC11 makes it clear that you must not reveal the reason for your withdrawal to the court

What does your duty to act with honesty and integrity under CD3 include? (rC9)

·      the following requirements:

.1 you must not knowingly or recklessly mislead or attempt to mislead anyone;

.2 you must not draft any statement of case, witness statement, affidavit or other document containing:

.a any statement of fact or contention which is not supported by your client or by your instructions;

.b any contention which you do not consider to be properly arguable;

.c any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud;

.d (in the case of a witness statement or affidavit) any statement of fact other than the evidence which you reasonably believe the witness would give if the witness were giving evidence orally;

.3 you must not encourage a witness to give evidence which is misleading or untruthful;

.4 you must not rehearse, practise with or coach a witness in respect of their evidence;

.5 unless you have the permission of the representative for the opposing side or of the court, you must not communicate with any witness (including your client) about the case while the witness is giving evidence;

.6 you must not make, or offer to make, payments to any witness which are contingent on their evidence or on the outcome of the case;

.7 you must only propose, or accept, fee arrangements which are legal.

What obligations do your duties to act in the best interests of each client (CD2), to provide a competent standard of work and service to each client (CD7) and to keep the affairs of each client confidential (CD6) include?

The following obligations:

.1 you must promote fearlessly and by all proper and lawful means the client’s best interests;

.2 you must do so without regard to your own interests or to any consequences to you (which may include, for the avoidance of doubt, you being required to take reasonable steps to mitigate the effects of any breach of this Handbook);

.3 you must do so without regard to the consequences to any other person (whether to your professional client, employer or any other person);

.4 you must not permit your professional client, employer or any other person to limit your discretion as to how the interests of the client can best be served; and

.5 you must protect the confidentiality of each client’s affairs, except for such disclosures as are required or permitted by law or to which your client gives informed consent.

What is included in a competent standard of work and service?

Includes:

.1 treating each client with courtesy and consideration; and

.2 seeking to advise your client, in terms they can understand; and

.3 taking all reasonable steps to avoid incurring unnecessary expense; and

.4 reading your instructions promptly. This may be important if there is a time limit or limitation period. If you fail to read your instructions promptly, it is possible that you will not be aware of the time limit until it is too late.

What may be required by your duty to consider whether your client’s best interests are served by different legal representation?

·       Your duty to comply with Rule rC17 may require you to advise your client that in their best interests they should be represented by:

.1 a different advocate or legal representative, whether more senior or more junior than you, or with different experience from yours;

.2 more than one advocate or legal representative;

.3 fewer advocates or legal representatives than have been instructed; or

.4 in the case where you are acting through a professional client, different solicitors.

·       gC51 - CD2 and Rules rC15.5 and rC17 require you, subject to Rule rC16, to put your client’s interests ahead of your own and those of any other person. If you consider that your professional client, another solicitor or intermediary, another barrister, or any other person acting on behalf of your client has been negligent, you should ensure that your client is advised of this.

What are some risk factors indicating that a person might be vulnerable?

o   being a victim of domestic, racial, financial or sexual abuse;

o   being a victim of trafficking, hate crime or discrimination;

o   being a victim of exploitation;

o   a lack of fluency in the English language;

o   being unable to read or to write very well;

o   having a disability, such as a learning disability, autism, or a hearing impairment;

o   difficulty with communicating and/or understanding;

o   having a mental health condition

o   all children (i.e. those under 18) are considered vulnerable

What duty do barristers have in relation to identifying and responding to vulnerabilities of witnesses and parties?

·    This is part of the barrister’s core ‘duty to the court in the administration of justice’.

·      Barristers also have a responsibility to ensure that the interests of their vulnerable clients are taken into account and their needs are met.

·      Barristers should do what they reasonably can to ensure their client understands the process and what to expect from it and from their barrister, and should try to avoid any unnecessary distress for their client

·      Court ‘must identify the needs of witnesses at an early stage’ and adapt the pre-trial and trial process accordingly

·      All advocates should be alert to possible behavioural and psychological changes in the presentation of the witness or party at court.

When may expert advice be required in respect of a person’s vulnerability?

·      If there is uncertainty about the existence, type or impact of the person’s vulnerability, expert advice should be taken. This might be from an expert witness, such as a psychologist or psychiatrist, for example. An intermediary is not an expert witness but can assist by carrying out an assessment of the communication needs and abilities of the witness or party

·      Where a defendant (or indeed a witness) may have difficulty in recalling all that they want to say to the jury because of their limitations, a very detailed defence statement could be read by the judge to the jury to enable jury members to hear the defendant's evidence in that way.

o   Another possibility is to allow the witness (or a defendant) to refer to a document if it assists them to give their evidence properly (R v SH [2003] EWCA Crim 1208, paras 27–29 as cited in Regina v. Camberwell Green Youth Court [2005] UKHL 4, paras 58–59)

When may you cease to act on a matter on which you are instructed and return your instructions due to an issue of confidentiality?

·      If you become aware of confidential or privileged information or documents of another person which relate to the matter on which you are instructed

What are some examples of conduct on social media which may amount to a breach of BSB standards?

o   Posting material online that is dishonest, as this may be a breach of CD3, CD5 and/or rC8.

o   Making comments that target a person or groups of people which are seriously offensive, discriminatory, harassing, threatening, or bullying. Comments of this nature may be a breach of CD5 and/or rC8. This includes making comments which are of an indecent, obscene, or menacing character or which are gratuitously abusive. However, the use of foul language alone is unlikely to amount to a breach of the BSB Handbook.

o   Sharing communications or hyperlinks to content posted by others which are seriously offensive, discriminatory, harassing, threatening or bullying, without making it clear that you disagree with the content, as this may be taken as an endorsement of that content. Such conduct may be a breach of CD5 and/or rC8.

o   Comments about judges, the judiciary, or the justice system which involve gratuitous attacks or serious criticisms that are misleading and do not have a sound factual basis. Comments of this nature may be a breach of CD1, CD3, CD5, rC8 and/or rC9.

You should also be alive to the potential risks to your ability to keep the affairs of your client confidential (CD6) when you are using social media. Such risks could arise if you send confidential communications to a client over social media in circumstances where confidentiality cannot be guaranteed, or if you reveal your location on social media at a particular time, thereby linking you to a particular client (perhaps via a ‘geotagged’ status, update, or post).

What should you do where documents are disclosed to you by mistake?

·      gC86 provides that when considering whether or not you are required to return your instructions in accordance with rC26.6, you should have regard to relevant case law

o   Case law establishes that where you read a confidential document disclosed to you by mistake, then you may come under a duty of confidence to your opponent or to another person not to use that document or the information contained in it for any purposes or to disclose the same to any other person including your lay client

o   If the information contained in the document is relevant to the matter upon which you are instructed, then you may decide that you are professionally embarrassed by reason of that duty of confidence in that you are no longer able to act in the best interests of your lay client (CD2) and/or to maintain your independence (CD4).

What are some considerations for you when determining whether you should cease to act and return existing instructions due to inadvertent disclosure?

·      gC83 provides that in deciding whether to cease to act and to return existing instructions in accordance with rC26, you should, where possible and subject to your overriding duty to the court, ensure that the client is not adversely affected because there is not enough time to engage other adequate legal assistance

o   If you are going to cease to act, and the lay client does not consent to you ceasing to act, then you must clearly explain to the lay client or to the professional client the reason for doing so (rC27.1)

What are the rules around inadvertent disclosure of a privileged document in civil and criminal litigation?

·      In the context of the inadvertent disclosure of a privileged document in civil litigation, CPR Rule 31.20 provides that where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the court.

o   If such permission is refused, the court may also restrain by injunction the further use or disclosure of the document in question (see Al-Fayed v Commissioner of Police and the Metropolis [2002] EWCA 780).

As regards confidential material inadvertently disclosed in the course of criminal proceedings, the Crown Court also has jurisdiction to grant an injunction restraining further use or disclosure of the material in question (see R v. B. & G. [2004] EWCA Crim 1368).

What should you do where you have accidentally been shown evidence which is subject to public interest immunity?

·      As a result, you are not entitled to disclose it at will and have “a duty to protect the public interest, if necessary by an application to the court.” See paragraph 10 of the Bar Council: “Documents disclosed to Counsel by mistake.”

Here the correct course is to bring the matter to the judge’s attention and allow her to rule on whether the evidence can be disclosed further and/or used at the trial.

Assuming that you are not permitted to disclose or rely on the evidence, it is not in your client’s best interest to withdraw in the middle of the trial. Consequently, this is likely to be one of those uncomfortable situations where your duty to the court (CD1) requires you not to disclose important information to your client

What should you do if you receive privileged materials and then realise it should not have been sent to you?

·      Should stop reading it and return it .

As a matter of professional courtesy, you should explain what has happened and confirm that you have not read the enclosed report or the rest of the letter from her solicitor

How does the duty to provide a competent standard of work and service to each client apply to acceptance of instructions?

·      Your duty to provide a competent standard of work and service to each client (CD7) includes a duty to inform your professional client, or your client if instructed by a client, as far as reasonably possible in sufficient time to enable appropriate steps to be taken to protect the client’s interests, if:

.1 it becomes apparent to you that you will not be able to carry out the instructions within the time requested, or within a reasonable time after receipt of instructions; or

.2 there is an appreciable risk that you may not be able to undertake the instructions

Under what circumstances must you not accept instructions?

·      rC21 - You must not accept instructions to act in a particular matter if:

.1 due to any existing or previous instructions you are not able to fulfil your obligation to act in the best interests of the prospective client; or

.2 there is a conflict of interest, or real risk of conflict of interest, between your own personal interests and the interests of the prospective client in respect of the particular matter; or

.3 there is a conflict of interest, or real risk of conflict of interest, between the prospective client and one or more of your former or existing clients in respect of the particular matter unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances; or

.4 there is a real risk that information confidential to another former or existing client, or any other person to whom you owe duties of confidence, may be relevant to the matter, such that if, obliged to maintain confidentiality, you could not act in the best interests of the prospective client, and the former or existing client or person to whom you owe that duty does not give informed consent to disclosure of that confidential information; or

.5 your instructions seek to limit your ordinary authority or discretion in the conduct of proceedings in court; or

.6 your instructions require you to act other than in accordance with law or with the provisions of this Handbook; or

.7 you are not authorised and/or otherwise accredited to perform the work required by the relevant instruction; or

.8 you are not competent to handle the particular matter or otherwise do not have enough experience to handle the matter; or

.9 you do not have enough time to deal with the particular matter, unless the circumstances are such that it would nevertheless be in the client’s best interests for you to accept; or

.10 there is a real prospect that you are not going to be able to maintain your independence.

What must you do where there is a conflict of interest between an existing client and a prospective client?

-  You are prohibited from acting where there is a conflict of interest between your own personal interests and the interests of a prospective client.

However, where there is a conflict of interest between an existing client or clients and a prospective client or clients or two or more prospective clients, you may be entitled to accept instructions or to continue to act on a particular matter where you have fully disclosed to the relevant clients and prospective clients (as appropriate) the extent and nature of the conflict; they have each provided their informed consent to you acting; and you are able to act in the best interests of each client and independently as required by CD2 and CD4.

What are some examples of situations where you may be required to refuse to accept instructions when you are not authorised or accredited to perform the work?

·      Examples of where you may be required to refuse to accept instructions in accordance with Rule rC21.7 include:

.1 where the instructions relate to the provision of litigation services and you have not been authorised to conduct litigation in accordance with the requirements of this Handbook;

.2 ————

.3 where the matter would require you to conduct correspondence with parties other than your client (in the form of letters, faxes, emails or the like), you do not have adequate systems, experience or resources for managing appropriately such correspondence and/or you do not have adequate insurance in place in accordance with Rule rC75 which covers, amongst other things, any loss suffered by the client as a result of the conduct of such correspondence.

What are you required to do where instructions are delivered especially late?

·      Rule rC21.9 recognises that there may be exceptional circumstances when instructions are delivered so late that no suitable, competent advocate would have adequate time to prepare. In those cases you are not required to refuse instructions as it will be in the client’s best interests that you accept. Indeed, if you are obliged under the cab rank rule to accept the instructions, you must do so.

What are some examples of situations where you may not be able to maintain your independence?

Include appearing as an advocate in a matter in which you are likely to be called as a witness (unless the matter on which you are likely to be called as a witness is peripheral or minor in the context of the litigation as a whole and is unlikely to lead to your involvement in the matter being challenged at a later date).

If it appears that you are likely to be a witness on a material question of fact, and therefore must withdraw from a case as there is a real prospect that you are not going to be able to maintain your independence (Rules C21.10 and C25), you must also comply with Rule C27.

What are some examples of circumstances where you must cease to act and return instructions?

·      you must cease to act and return your instructions if:

.1 in a case funded by the Legal Aid Agency as part of Criminal Legal Aid or Civil Legal Aid it has become apparent to you that this funding has been wrongly obtained by false or inaccurate information and action to remedy the situation is not immediately taken by your client; or

.2 the client refuses to authorise you to make some disclosure to the court which your duty to the court requires you to make; or

.3 you become aware during the course of a case of the existence of a document which should have been but has not been disclosed, and the client fails to disclose it or fails to permit you to disclose it, contrary to your advice.

What are some situations where you may cease to act and return instructions?

·      if:

.1 your professional conduct is being called into question; or

.2 the client consents; or

.3 you are a self-employed barrister and:

.a despite all reasonable efforts to prevent it, a hearing becomes fixed for a date on which you have already entered in your professional diary that you will not be available; or

.b illness, injury, pregnancy, childbirth, a bereavement or a similar matter makes you unable reasonably to perform the services required in the instructions; or

.c you are unavoidably required to attend on jury service;

.4 you are a BSB entity and the only appropriate authorised individual(s) are unable to continue acting on the particular matter due to one or more of the grounds referred to at Rules rC26.3.a to rC26.3.c above occurring;

.5 you do not receive payment when due in accordance with terms agreed, subject to Rule rC26.7 (if you are conducting litigation) and in any other case subject to your giving reasonable notice requiring the non-payment to be remedied and making it clear to the client in that notice that failure to remedy the non-payment may result in you ceasing to act and returning your instructions in respect of the particular matter; or

.6 you become aware of confidential or privileged information or documents of another person which relate to the matter on which you are instructed; or

.7 if you are conducting litigation, and your client does not consent to your ceasing to act, your application to come off the record has been granted; or

.8 there is some other substantial reason for doing so (subject to Rules rC27 to rC29 below)

What is the effect of a fundamental change to your basis of remuneration?

·      gC87 - If a fundamental change is made to the basis of your remuneration, you should treat such a change as though your original instructions have been withdrawn by the client and replaced by an offer of new instructions on different terms. Accordingly:

.1 you must decide whether you are obliged by Rule rC29 to accept the new instructions;

.2 if you are obliged under Rule rC29 to accept the new instructions, you must do so;

.3 if you are not obliged to accept the new instructions, you may decline them;

.4 if you decline to accept the new instructions in such circumstances, you are not to be regarded as returning your instructions, nor as withdrawing from the matter, nor as ceasing to act, for the purposes of Rules rC25 to rC26, because the previous instructions have been withdrawn by the client.

When does the cab rank rule not apply?

·      does not apply if:

.1 you are required to refuse to accept the instructions pursuant to Rule rC21; or

.2 accepting the instructions would require you or the named authorised individual to do something other than in the course of their ordinary working time or to cancel a commitment already in their diary; or

.3 the potential liability for professional negligence in respect of the particular matter could exceed the level of professional indemnity insurance which is reasonably available and likely to be available in the market for you to accept; or

.4 you are a King’s Counsel, and the acceptance of the instructions would require you to act without a junior in circumstances where you reasonably consider that the interests of the client require that a junior should also be instructed; or

.5 accepting the instructions would require you to do any foreign work; or

.6 accepting the instructions would require you to act for a foreign lawyer (other than a European lawyer, a lawyer from a country that is a member of EFTA, a solicitor or barrister of Northern Ireland or a solicitor or advocate under the law of Scotland); or

.7 the professional client:

.a is not accepting liability for your fees; or

.b represents, in your reasonable opinion, an unacceptable credit risk; or

.c is instructing you as a lay client and not in their capacity as a professional client; or

.8 you have not been offered a proper fee for your services (except that you shall not be entitled to refuse to accept instructions on this ground if you have not made or responded to any fee proposal within a reasonable time after receiving the instructions); or

.9 except where you are to be paid directly by (i) the Legal Aid Agency as part of the Community Legal Service or the Criminal Defence Service or (ii) the Crown Prosecution Service:

.a your fees have not been agreed (except that you shall not be entitled to refuse to accept instructions on this ground if you have not taken reasonable steps to agree fees within a reasonable time after receiving the instructions);

.b having required your fees to be paid before you accept the instructions, those fees have not been paid;

.c accepting the instructions would require you to act other than on (A) the Standard Contractual Terms for the Supply of Legal Services by Barristers to Authorised Persons 2020 as published on the Bar Council’s website; or (B) if you publish standard terms of work, on those standard terms of work.

When may you refuse to accept instructions on the basis that your fee is not proper?

·      gC90 - In determining whether or not a fee is proper for the purposes of Rule C30.8, regard shall be had to the following:

.1 the complexity length and difficulty of the case;

.2 your ability, experience and seniority; and

.3 the expenses which you will incur.

·      gC91 - Further, you may refuse to accept instructions on the basis that the fee is not proper if the instructions are on the basis that you will do the work under a conditional fee agreement or damages based agreement.

What are some examples of when you might reasonably conclude that a professional client represents an unacceptable credit risk?

·      gC91A - Examples of when you might reasonably conclude (subject to the following paragraph) that a professional client represents an unacceptable credit risk for the purposes of Rule C30.7.b include:

.1 Where they are included on the Bar Council’s List of Defaulting Solicitors;

.2 Where to your knowledge a barrister has obtained a judgment against a professional client, which remains unpaid;

.3 Where a firm or sole practitioner is subject to insolvency proceedings, an individual voluntary arrangement or partnership voluntary arrangement; or

.4 Where there is evidence of other unsatisfied judgments that reasonably call into question the professional client’s ability to pay your fees.

Even where you consider that there is a serious credit risk, you should not conclude that the professional client represents an unacceptable credit risk without first considering alternatives. This will include considering whether the credit risk could be mitigated in other ways, for example by seeking payment of the fee in advance or payment into a third party payment service as permitted by rC74, rC75 and associated guidance.

What rules apply to self-employed barristers re investigating or collecting evidence

·      if the nature of the evidence or the circumstances in which it was investigated or collected are such that there is likely to be an issue about that in court, where the barrister might be needed to give evidence, the barrister can properly b involved in the preparations for a case but cannot accept a brief to conduct the case in court, even as the junior member of a team of barristers. Only if the barrister reasonably believes that the investigation and collection of that evidence (as distinct from the evidence itself) is unlikely to be challenged can the barrister properly conduct the case in court

·      In assessing whether to accept a brief in these circumstances, the barrister should be mindful of the risk where they have been involved in the collection or investigation of evidence. The barrister's duty is to reach a reasonable decision on the risk involved before accepting a brief. The brief can only properly be accepted if it is reasonable for the barrister to conclude that the circumstances of his investigation or collection of evidence are unlikely to be challenged. If the barrister's decision is not a reasonable one, and the trial is subsequently adjourned as a result of the barrister withdrawing from the case, the barrister risks being exposed to an order for wasted costs as well as enforcement action being take against them for a breach of the BSB Handbook.

Even where a brief is properly accepted, the question of whether the barrister should continue to act is a matter that they must keep under review during the case in light of any later developments

What must you do if there is a clash of hearing dates/

·      you must exercise your professional judgement in deciding which hearing is most important to attend

·      Particular types of hearings may have to take precedence as a matter of law or procedure. You should take direction from the Court and have regard to any relevant case management rules

·      Where an order of precedence is not clear, you should consider your duty to act in the best interests of each of your clients and, in particular, which of your clients is likely to be most prejudiced by alternative representation being arranged at short notice. You should take particular care to consider the needs of vulnerable clients and the impact of your decision on access to justice.

·      You should consider all the relevant circumstances relating to each case including the following issues:

- the length of time that you have been instructed on each case;

- the complexity and difficulty of each case;

- the amount of work you have already done on the case;

- relevant access to justice considerations and the likely impact on your client.

What should you do in respect of a missed hearing?

·      Should at all times take reasonable steps to keep all parties concerned informed of any clash of hearing dates. In particular you should ensure that your clients are informed of any clash as soon as possible.

·      Should take all reasonable steps to assist clients to find alternative representation where you are unable to attend a hearing date.

What must you consider if you are offered a gift?

If you are offered a gift by a current, prospective or former client, professional client or other intermediary, you should consider carefully whether the circumstances and size of the gift would reasonably lead others to think that your independence had been compromised. If this would be the case, you should refuse to accept the gift.

When must you report your conduct to the BSB?

rC65.1 -65.2 and 65.7 - You must report promptly to the Bar Standards Board if:

.1 you are charged with an indictable offence; in the jurisdiction of England and Wales or with a criminal offence of comparable seriousness in any other jurisdiction;

.2 subject to the Rehabilitation of Offenders Act 1974 (as amended) you are convicted of, or accept a caution, for any criminal offence, in any jurisdiction, other than a minor criminal offence;

------------

.7 you have committed serious misconduct

gC94.1 - For the avoidance of doubt rC65.2 does not oblige you to disclose cautions or criminal convictions that are “spent” under the Rehabilitation of Offenders Act 1974 unless the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) applies. However, unless the caution or conviction is immediately spent, you must notify the BSB before it becomes spent

What is considered as serious misconduct?

gC96 - Serious misconduct includes, without being limited to:

.1 dishonesty (CD3);

.2 assault or harassment (CD3 and/or CD5 and/or CD8);

.3 seeking to gain access without consent to instructions or other confidential information relating to the opposing party’s case (CD3 and/or CD5); or

.4 seeking to gain access without consent to confidential information relating to another member of chambers, member of staff or pupil (CD3 and/or CD5);

.5 encouraging a witness to give evidence which is untruthful or misleading (CD1 and/or CD3);

.6 knowingly or recklessly misleading, or attempting to mislead, the court or an opponent (CD1 and/ or CD3); or

.7 being drunk or under the influence of drugs in court (CD2 and/or CD7); or

.8 failure to report promptly to the Bar Standards Board pursuant to rC65.1-rC65.5 and/or rC66 above or if;

• director’s disqualification proceedings are initiated against you;

• a director’s disqualification order is made against you;

• winding up proceedings are initiated in respect of or against you;

• you have had an administrator, administrative receiver, receiver or liquidator appointed in respect of you;

• administration proceedings are initiated in respect of or against you;

.9 a breach of rC67 above; for example, reporting, or threatening to report, another person as a litigation tactic or otherwise abusively; or merely to please a client or any other person or otherwise for an improper motive; 

.10 conduct that poses a serious risk to the public.

What are some examples of conduct on social media which may amount to a breach of the BSB handbook?

Posting material online that is dishonest, as this may be a breach of CD3, CD5 and/or rC8.

• Making comments that target a person or groups of people which are seriously offensive, discriminatory, harassing, threatening, or bullying. Comments of this nature may be a breach of CD5 and/or rC8. This includes making comments which are of an indecent, obscene, or menacing character or which are gratuitously abusive. However, the use of foul language alone is unlikely to amount to a breach of the BSB Handbook.

• Sharing communications or hyperlinks to content posted by others which are seriously offensive, discriminatory, harassing, threatening or bullying, without making it clear that you disagree with the content, as this may be taken as an endorsement of that content. Such conduct may be a breach of CD5 and/or rC8.

• Comments about judges, the judiciary, or the justice system which involve gratuitous attacks or serious criticisms that are misleading and do not have a sound factual basis.6 Comments of this nature may be a breach of CD1, CD3, CD5, rC8 and/or rC9.

• You should also be alive to the potential risks to your ability to keep the affairs of your client confidential (CD6) when you are using social media. Such risks could arise if you send confidential communications to a client over social media in circumstances where confidentiality cannot be guaranteed, or if you reveal your location on social media at a particular time, thereby linking you to a particular client (perhaps via a ‘geotagged’ status, update, or post). You should familiarise yourself with the settings of the social media you use, as well as any privacy policies.

Which core duties and mandatory rules are most likely to be relevant to non-professional conduct?

Core Duty 5 (CD5)

You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.

 

Rule C8 (rC8)

You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).

What does Fair Access to Work require?

·      rC 1 10(3)(i) requires that the affairs of chambers are conducted in a manner which is fair and equitable for all members of chambers, pupils and/or employees. This includes, but is not limited to, the fair distribution of work opportunities amongst pupils and members of chambers.

·      Chambers should ensure that clerks are aware of the legal position and the requirement that work is distributed fairly

·      On no account should clerks comply with any request or requirement to discriminate on unlawful grounds in the choice of barristers. Should the solicitor refuse to modify or withdraw the request and continue to insist on a discriminatory allocation of work, the work should be politely refused, the clerk should make a full note of the incident immediately, and the solicitor should be reported to his or her professional disciplinary body.

What are the rules around reasonable adjustments?

rC 1 10(3)(m) requires that chambers has a reasonable adjustments policy aimed at supporting disabled clients, its workforce and others including temporary visitors to chambers.

 

Chambers are encouraged to provide training in equality and diversity issues to all members of chambers, staff and pupils. This guidance is not a substitute for training

 

The Equality Act 2010 imposes a duty on a barrister to make reasonable adjustments. The legal duty to make reasonable adjustments comprises three requirements to make reasonable adjustments