5. Best interests, competentcy, confidentiality

Question 1

What outcomes are relevant regarding clients?

Answer 1

oC10
Clients receive a competent standard of work and service.
oC11
Clients’ best interests are protected and promoted by those acting for them.
oC12
BSB authorised persons do not accept instructions from clients where there is a conflict between their own interests and the clients’ or where there is a conflict between one or more clients except when permitted in this Handbook.
oC13
Clients know what to expect and understand the advice they are given.
oC14
Care is given to ensure that the interests of vulnerable clients are taken into account and their needs are met.
oC15
Clients have confidence in those who are instructed to act on their behalf.
oC16
Instructions are not accepted, refused, or returned in circumstances which adversely affect the administration of justice, access to justice or (so far as compatible with these) the best interests of the client.
oC17
Clients and BSB authorised persons and authorised (non-BSB) individuals and managers of BSB entities are clear about the circumstances in which instructions may not be accepted or may or must be returned.
oC18
Clients are adequately informed as to the terms on which work is to be done.
oC19
Clients understand how to bring a complaint and complaints are dealt with promptly, fairly, openly and effectively.
oC20
Clients understand who is responsible for work done for them.

Question 2

What does CD2, CD7, AND CD6 entail?

Answer 2

.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.

.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.

Question 3

Is your best interests duty subject to any other duty?

Answer 3

Yes, your duty to act in the best interests of each client (CD2) is subject to your duty to the court (CD1) and to your obligations to act with honesty, and with integrity (CD3) and to maintain your independence (CD4).

Question 4

Who is your duty owed to?

Answer 4

Your client ONLY.

Question 5

Can you accept instructions of muliple clients together?

Answer 5

Yes, but:

you may only accept instructions to act for more than one client if you are able to act in the best interests of each client as if that client were your only client, as CD2 requires of you.

Question 6

What does CD7 and CD2 include?

Answer 6

.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.

Question 7

What should you do to ensure your skills are up-to-date?

Answer 7

Regularly take part in professional development and educational activities, taking reasonable steps to ensure any employees or managers you are responsible for are trained.

Also comply with any training requirements of BSB, such as not advising in police station until certified or taking public access work without the training.

Question 8

Are just completing the CPD requirements enough to ensure you are up-to-date?

Answer 8

Potentially no.

Question 9

How should BSB entities/managers of such entities allocate work?

Answer 9

Appropriately according to their knowledge or expertise.

Question 10

In order to provide a competent standard of work or service, what should you do regarding your client?

Answer 10

You should remember that your client may not be familiar with legal proceedings and may find them difficult and stressful.

You should do what you reasonably can to ensure that the client understands the process and what to expect from it and from you.

You should also try to avoid any unnecessary distress for your client. This is particularly important where you are dealing with a vulnerable client.

Question 11

When may you have to make a disclosure of confidential information?

Answer 11

For example, you may be obliged to disclose certain matters by the Proceeds of Crime Act 2002, such as where they are using you in intention of futherance. Disclosure in those circumstances would not amount to a breach of CD6 or Rule rC15.5

• It is publicly funded and the funding has been obtained wrongly. The barrister must draw this to the client’s attention. If the client fails to take immediate action to rectify the position, the barrister must withdraw. THIS IS A CASE WHERE CONFIDENTIALITY MUST BE BREACHED.

You will not have a duty of confidence if you are being used by a client to perpetrate a fraud, and, by analogy, any other crime.

A notice of production

In other circumstances, you may only make disclosure of confidential information where your client gives informed consent to the disclosure. See the Guidance to Rule rC21 at gC69 for an example of circumstances where it may be appropriate for you to seek such consent.

Question 12

What should you do when you are a relevant person for money laundering purposes?

Answer 12

Implement:
Risk managment practices
Due diligence procedures
Record-keeping and resilience policies

Question 13

If you are a pupil of or deviling for a barrister, does any work you do for them count as work for them or for the client?

Answer 13

For the client, as if they were your own.

Question 14

What do you have to consider in respect of the client which may impact you?

Answer 14

Whether he is better served by different representation.

If so, advise to that effect.

Question 15

Where you believe you must advise the client they are better served by different representation, what may you advise them?

Answer 15

That they may be better represented through:

.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.

Question 16

What should you be considering where you are instructed on a public access basis?

Answer 16

whether solicitors should also be instructed

Question 17

Whose interests should be paramount when working as a barrister?

Answer 17

The client.

Question 18

Where you consider some other adviser has been negligent in respect of the client, what should you do?

Answer 18

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.

Question 19

What does your CD7 duty tell you to inform either your professional client or client about within a reasonable time?

Answer 19

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.

Question 20

What should you do to prevent a clash of hearings?

Answer 20

Undertake all reasonable efforts to prevent this, including effectively communicating with the court and diarising effectively

Question 21

What should you do where a clash of hearings is unavoidable?

Answer 21

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.

You should take all reasonable steps to assist clients to find alternative representation
where you are unable to attend a hearing date

Question 22

What should you not mislead clients and potential clients about?

Answer 22

.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.

You must consider how matters will appear to the client

Question 23

How may clients be mislead in relation to where solicitors and barristers share premises?

Answer 23

Clients may, by way of example, be misled if self-employed barristers were to share premises with solicitors or other professionals without making sufficiently clear to clients that they remain separate and independent from one another and are not responsible for one another’s work.

Question 24

What should barristers do for clients in respect of “ProcureCo”s (entities established to get work, but who can not provide legal advice)?

Answer 24

it is likely to be necessary to make clear to clients that any entity established as a “ProcureCo” is not itself able to supply reserved legal activities and is not subject to regulation by the Bar Standards Board.

Question 25

Can chambers breach the rule on not misleading clients by creating an appearance of an entity or partnership with its members?

Answer 25

Yes, if it fails to explain that they are in fact self-employed individuals not responsible for others work.

Question 26

Can you breach the rule on not misleading clients by publishing inaccurate or misleading advertising?

Answer 26

Yes. Should also be careful about making comparisons with other persons

Question 27

Where you carry out public access work but are not authorised to conduct litigation, could you breach the rule on not misleading the client by not informing them that you won’t conduct the litigation?

Answer 27

Yes if you caused them or permitted them to be mislead

Question 28

Can you charge at your own hourly rate for work done by a pupil or devil?

Answer 28

No. will be a breach.

Question 29

Can you breach any rules by miusleading a client into thinking you were providing legal services as a barrister or that you were regulated as a practising barrister?

Answer 29

Yes.

Question 30

Can you breach any rules if you imply to a client you are covered by insurance where you are not?

Answer 30

Yes.

Question 31

Can you breach any rules where you suggest your clients could seek a remedy from the BSB or legal ombudsman if they were disatisfied?

Answer 31

Yes.

Question 32

Where you are a BSB authorised individual and also a manager of an authorised (non BSB) body, what should you do with the client?

Answer 32

Tell them in what capacity you are acting and so to whom the responsibility for the services falls.

Question 33

In what way must you be careful when your position is a pupil?

Answer 33

Not portray yourself or permit yourself to be portrayed as a member.

Question 33

Who is responsible for your conduct?

Answer 33

You and only you, and must exercise your professional judgment on your instructions justifiably, notwithstanding the views of your client professional client employer or anyone else

Question 34

Does the rule that you are personally responsible prevent you from delegating or outsourcing certain tasks?

Answer 34

No, for example research, where they are well-equipped to provide it.

Question 35

Are you personally responsible for any work outsourced?

Answer 35

Yes

Question 36

Are you responsible for the service provided by anyone, including clerks, who represent you?

Answer 36

Yes

Question 37

Does contracting for civil liability to accrue against another entity rather than yourself personally affect the action the BSB can take?

Answer 37

No

Question 38

When must you not accept instructions?

Answer 38

.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 (such as for litigation and you are not allowed to handle it or where you are unable to manage handling correspondence/you don’t have insurance for it)

.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. (such as if you may have to appear as a witness unlss its minor or peripheral)

.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.

Question 39

Do you always have to refuse to accept instructions where it may create a conflict of interest?

Answer 39

No. here 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.

Question 40

Whe you are thinking about refusing instructions because you are incompetent for that matter, what may you take into account regarding your potential interaction with the client?

Answer 40

Working with vulnerable clients and if you are competent to do that

Question 41

Regarding whether you have enough time do deal with instructions, where they are so late no competent advocate would have adequate time to prepare should you still refuse them?

Answer 41

No as that would be in the best interests of the client.

Question 42

What must you do when you first accept instructions?

Answer 42

.1 you must, subject to Rule rC23 (you do not have to accept if they are varied), confirm in writing acceptance of the instructions and the terms and/or basis, and the scope, on which you will be acting, including the basis of charging (perhaps through referring to or linking to those terms, and perhaps include the amount to be charged if it is varied);

.2 where your instructions are from a professional client, the confirmation required by (the rule above) rC22.1 must be sent to the professional client;

.3 where your instructions are from a client, the confirmation required by (the rule above) rC22.1 must be sent to the client.

.4 if you are a BSB entity, you must ensure that the terms under which you accept instructions from clients include consent from clients to disclose and give control of files to the Bar Standards Board or its agent in circumstances where the conditions in rS113.5 are met.

UNLESS it is not reasonably practicable, at which point you should do it when it is.

Question 43

Where you agree terms proposed to you by the professional client or the client, what should you do?

Answer 43

Confirm in writing what those terms are.

Question 44

Where there are competing terms for your instructions, how will the terms you work on be determined?

Answer 44

In accordance with contract law.

Question 45

May a clerk accept instructions on a barrister’s behalf?

Answer 45

Yes

Question 46

What should you comply with when accepting instructions?

Answer 46

The complaints handling rules

Question 47

Where you been instructed in relation to a discrete and finite task, such as to provide an opinion on a particular issue, or to provide ongoing services, for example, to conduct particular litigation, what should you do when accepting those instructions?

Answer 47

You should make clear the scope of the instructions you are accepting, whether by cross-referring to them or summarising your understanding.

Question 48

When you must return your instructions, what should you do?

Answer 48

you must cease to act and return your instructions PROMPTLY, 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.

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.

Question 49

When MAY you cease to act?

Answer 49

.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).

Question 50

What should you consider when deciding whether to cease to act?

Answer 50

In deciding whether to cease to act and to return existing instructions in accordance with Rule 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.

Question 51

Are you still instructed where your professional client withdraws?

Answer 51

If you are working on a referral basis and your professional client withdraws, you are no longer instructed and cannot continue to act unless appointed by the court, or you otherwise receive new instructions.

Question 52

Are you bound by the cab rank rule if apppointed by the court?

Answer 52

No.

Question 53

Can you withdraw where you have a non-professional engagement?

Answer 53

You should not rely on Rule rC26.3 to break an engagement to supply legal services so that you can attend or fulfil a non-professional engagement of any kind other than those indicated in Rule rC26.3.

Question 54

If a fundamental basis is made to the baasis of your renumeration, how should you approach that situation?

Answer 54

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.

Question 55

Where you are to cease to act, what should you do?

Answer 55

You must not:

.1 cease to act or return instructions without either:

.a obtaining your client’s consent; or

.b clearly explaining to your client or your professional client the reasons for doing so; or

.2 return instructions to another person without the consent of your client or your professional client.

Question 56

Can withhold your services where on the ground that the nature of the case is objectionable to you or to any section of the public?

Answer 56

No

Question 57

Can withhold your services where on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to you or to any section of the public?

Answer 57

No

Question 58

Can withhold your services on any ground relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question?

Answer 58

No

Question 59

What is does discrimination in the BSB handbook refer to?

Answer 59

This rule of conduct is concerned with a broader obligation not to withhold your services on grounds that are inherently inconsistent with your role in upholding access to justice and the rule of law and therefore in this rule “discriminate” is used in this broader sense. This obligation applies whether or not the client is a member of any protected group for the purposes of the Equality Act 2010. For example, you must not withhold services on the ground that any financial support which may properly be given to the prospective client for the proceedings in question will be available as part of Criminal Legal Aid and Civil Legal Aid.

Question 60

What is the cab rank rule?

Answer 60

If you receive instructions from a professional client, and you are:

.1 a self-employed barrister instructed by a professional client; or

.2 an authorised individual working within a BSB entity; or

.3 a BSB entity and the instructions seek the services of a named authorised individual working for you,

and the instructions are appropriate taking into account the experience, seniority and/or field of practice of yourself or (as appropriate) of the named authorised individual you must, subject to Rule rC30 below, accept the instructions addressed specifically to you, irrespective of:

.a the identity of the client;

.b the nature of the case to which the instructions relate;

.c whether the client is paying privately or is publicly funded; and

.d any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.

Question 61

When does the cab rank not apply?

Answer 61

The cab rank Rule rC29 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.

Question 62

How do you determine whether you are receiving a ‘proper fee’?

Answer 62

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.

Question 63

Can you refuse to accept instructions on a conditional fee agreement or damages based agreement?

Answer 63

Yes

Question 64

When may you conclude the professional client represents an unacceptable credit risk?

Answer 64

.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.

Question 65

Does the cab rank rule apply to authorised persons who are not solicitors?

Answer 65

Yes