4. Duty of honesty, integrity, and independence and CD5

Question 1

What are the outcomes relevant to honesty, integrity, and independence?

Answer 1

oC6
Those regulated by the Bar Standards Board maintain standards of honesty, integrity
and independence, and are seen as so doing.
oC7
The proper administration of justice, access to justice and the best interests
of clients are served.
oC8
Those regulated by the Bar Standards Board do not discriminate unlawfully and take
appropriate steps to prevent discrimination occurring in their practices.
oC9
Those regulated by the Bar Standards Board and clients understand the obligations
of honesty, integrity and independence.

Question 2

In general terms, what must you not do in relation to CD3 and CD4?

Answer 2

Anything which could be reasonably seen by the public to undermine your honesty, integrity, and independence

Question 3

What does your duty under CD3 include?

Answer 3

.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. (or accept referral fees)

Question 4

When may it been seen as comprimising your independence?

Answer 4

.1 offering, promising or giving:

.a any commission or referral fee (of whatever size) – note that these are in any case prohibited by Rule rC10 and associated guidance; or

.b a gift (apart from items of modest value), to any client, professional client or other intermediary; or

.2 lending money to any such client, professional client or other intermediary; or

.3 accepting any money (whether as a loan or otherwise) from any client, professional client or other intermediary, unless it is a payment for your professional services or reimbursement of expenses or of disbursements made on behalf of the client;

Question 5

What should you do where you are offered a gift by someone you are professionally involved with?

Answer 5

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.

Question 6

Could receiving entertainment be seen as undermining independence?

Answer 6

Yes, at a disproportionate level so should not be accepted where it would lead other to reasonably think your independence had been comprimised.

Question 7

If you are a BSB authorised individual who is a an employee or manager of an authorised (non-BSB) body or you are an employed barrister (non-authorised body) and your approved regulator or employer (as appropriate) permits referral fees, can you make them?

Answer 7

Only to the extent and in the capacity as permitted by the other regulator or employed.

Question 8

Should you correspond with the other side’s client where they are legally represented?

Answer 8

No, should correspond with the lawyer at all times.

Question 9

What may be considered a breach of CD3/CD5?

Answer 9

Doing anything which could be reasonably seen to undermine honesty, independence or integrity;

Accepting referral fees;

Criminal conduct which needs to be reported;

seriously offensive conduct;

dishonesty;

unlawful discrimination, victimisation, or harassment;

abuse of professional position

Question 10

Are there any restrictions on referring to your position as a barrister?

Answer 10

Only where it is irrelevant but may influence others.

Example being using professional notepaper in a private dispute.

Question 11

Which core duties apply at all times?

Answer 11

CD5 and rC9.

rC9
Your duty to act with honesty and with integrity under CD3 includes 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.

Question 12

Can you accept or pay referral fees?

Answer 12

No

Question 13

What obligations are referral fees inconsistent with?

Answer 13

CD2, CD3, CD4, and CD5.

Question 14

What other things restrict referral fees?

Answer 14

LAA cases.

A referral fee to which the client has not consented to may be a bribe under the Bribery Act 2010.

Criminal Justice and Courts Act 2015, which restricts them for any claims for PI or death

Question 15

Do the referral fee provisions prevent all payments other than the fee?

Answer 15

No.

The below payments can be made:

.1 clerking and administrative services (including where these are outsourced);

.2 membership subscriptions to ADR bodies that appoint or recommend a person to provide mediation, arbitration or adjudication services; or

.3 advertising and publicity, which are payable whether or not any work is referred. However, the fact that a fee varies with the amount of work received does not necessarily mean that that it is a referral fee, if it is genuinely for a marketing service from someone who is not directing work to one provider rather than another, depending on who pays more.

Question 16

Are there any duties on you regarding undertakings?

Answer 16

Yes, you must within an agreed timescale or within a reasonable period comply with any you give during conducting litigation

Question 17

Do you need insurance for them if you give any undertakings?

Answer 17

Yes.

Question 18

What restrictions are there on any discrimination you may commit?

Answer 18

You must not discriminate unlawfully against, victimise or harass any other person on the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, gender re-assignment, sexual orientation, marital or civil partnership status, disability, age, religion or belief, or pregnancy and maternity.

Question 19

What should you abide by if you conduct foreign work?

Answer 19

Any applicable rule of conduct of the locality where the work is conducted and the place where the proceedings are taking place or are contemplated, unless inconsistent with the core duties

Question 20

Are there any restrictions on how you solicit foreign work?

Answer 20

Yes, you must not do so in a manner which would be prohibited if you were a member of the local bar.

Question 21

If you engage in cross-border litigation, are there any other rules you must comply with?

Answer 21

Yes.

When you are engaged in cross border activities within a CCBE State other than the UK, you must comply with the rules at 2.D5 which implement the part of the Code of Conduct for European Lawyers not otherwise covered by this Handbook as well as with any other applicable rules of conduct relevant to that particular CCBE State. It is your responsibility to inform yourself as to any applicable rules of conduct.