Accepting and returning instructions Flashcards
Outcome relating to instructions
oC17
It becomes apparent to you that you will not be able to carry out instructions within the time requested/there’s a risk you won’t be able to undertake them
rC18, your duty to provide a competent standard of work and service to each client (CD7) means that in these circumstances you must inform your professional client or client in sufficient time to protect your client’s interests
BSB guidance on clash of hearing dates
o Should make all reasonable efforts to prevent a clash of dates which involves communicating effectively with the court and managing and diarising your cases effectively.
o When impossible, you must exercise your professional judgement in deciding which hearing is most important to attend.
o Law and procedure rules may dictate, you should take direction from the Court and have regard to any case management rules.
o Where an order of precedence is not clear, you should consider your duty to act in the best interests of each client and in particular which is likely to be most prejudiced by alternative representation. Should consider the needs of vulnerable clients and the impact on access to justice
o Relevant circumstances include the following
The length of time you have been instructed
The complexity and difficulty of the case
The amount of work you have already done
Relevant access to justice considerations and the likely impact on your client
o When you miss a hearing, you should take reasonable steps to keep parties concerned informed of any clash of hearing dates. Should ensure that clients are informed of any clash as soon as possible
o Should take all reasonable steps to assist clients to find alternative representation when you’re unable to attend a hearing date
Circumstances where you must not accept instructions
rC21
o 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
o 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
o 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
o 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
o Your instructions seek to limit your ordinary authority or discretion in the conduct of proceedings in court
o Your instructions require you to act other than in accordance with law or with the provisions of this Handbook
o You are not authorised and/or otherwise accredited to perform the work required by the relevant instruction
o You are not competent to handle the particular matter or otherwise do not have enough experience to handle the matter
o 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
gC72 – If no competent advocate would have time to prepare, you are not required to refuse the instructions as it will be in the client’s best interests you accept. If you are required under the cab rank rule, you must do so.
o There is a real prospect that you are not going to be able to maintain your independence.
gC73 – Example scenarios: you are likely to be called as a witness (unless in relation to a peripheral or minor matter)
BSB guidance on Investigating and Collecting Evidence and Taking Witness Statements
Self-employed barristers may investigate or collect evidence or take witness statements. Can only properly conduct the case in court if you believe the evidence is unlikely to be challenged. Also applies to juniors because they have to be able to take on the case if necessary. If a barrister makes the wrong decision may be subject to a wasted costs order and breach of the BSB handbook.
Situations where you must cease to act and return instructions
rC25
o Circumstances in rC21 arise
o 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
o The client refuses to authorise you to make some disclosure to the court which your duty to the court requires you to make
o 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
Situations where you may return your instructions
rC26
o Your professional conduct is being called into question
o The client consents
o You are a self-employed barrister and
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
* gC85 – Should not rely on this to enable you to fulfil a non-professional engagement other than those beylow
Illness, injury, pregnancy, childbirth, a bereavement or a similar matter makes you unable reasonably to perform the services required in the instructions
You are unavoidably required to attend on jury service
o 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
o You become aware of confidential or privileged information or documents of another person which relate to the matter on which you are instructed
o 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
o Some other substantial reason for doing so
Should ensure the client is not adversely affected
gC83
Working on a referral basis and professional client withdraws
gC84, you are no longer instructed and cannot continue to act unless appointed by the court or you otherwise receive new instructions. Not bound by the cab rank rule if appointed by the court
Fundamental change made to the basis of your remuneration
gC87, should treat such a change as though your original instructions have been withdrawn and by the client and replaced with an offer of new instructions on different terms.
What must you do and not do when you want to return instructions
rC27, get your client’s consent or clearly explain to your client or professional client the reasons for doing so. You must not return the instructions to another person without the consent of your client or professional client.
Who does the cab rank rule apply to
rC29, self employed barristers receiving instructions from professional client where instructions are appropriate based on your experience and field.
What does cab rank rule say
rC29, must accept irrespective of the identify of the client, nature of the case, whether the client is paying privately or is publicly funded, and any belief or opinion you may have formed e.g. about their guilt or innocence
Situations where cab rank rule doesn’t apply
rC30
o you are required to refuse to accept the instructions pursuant to Rule rC21
o 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
o 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
o accepting the instructions would require you to do any foreign work or act for any foreign lawyer
o the professional client is not accepting liability for your fees or represents an unacceptable credit risk (such as when they are on the Bar Council’s list of defaulting solicitors. You should consider whether the risk should be mitigated – gC91A)
o You have not been offered a proper fee, fees not agreed, or advanced fees not been paid
gC90 – factors to consider when determining whether it is a proper fee include the complexity, length and difficulty of the case
gC91 – Conditional fee agreement or damages based agreement not proper
o gC89 – Would not be required to attend a police station or conduct litigation where you do not normally do so
