Accepting and Returning Instructions

Question 1

When must you not accept instructions to act in a case?

Answer 1

rc21

You must NOT accept instructions to act in a case if:

(i) You CANNOT fulfil your obligation to ACT IN THE CLIENT’S BEST interest due to any existing or previous instructions;
(ii) There is a CONFLICT OF INTEREST, or a REAL RISK of a conflict of interest, between your own personal interests and the interests of the prospective client;
(iii) There is a CONFLICT OF INTEREST, or a REAL RISK of a conflict of interest, between the prospective client and one or more of your former or current clients, UNLESS:
(1) You FULLY DISCLOSE to the relevant clients and prospective clients (as appropriate) the extent and nature of the conflict; AND
(2) ALL of the clients who have an interest in the case give their INFORMED CONSENT to you acting; AND
(3) You are able to ACT IN THE BEST INTERESTS OF EACH CLIENT and independently.
(iv) There is a REAL RISK that:
(1) information CONFIDENTIAL to another former or existing client may be relevant to the prospective client’s case, AND
(2) the former or existing client DOES NOT CONSENT TO DISCLOSURE of that confidential information, AND
(3) you could NOT properly serve the prospective client’s best interests without disclosing the confidential information;
(v) Your instructions seek to LIMIT YOUR ORDINARY AUTHORITY or DISCRETION in the conduct of the case in court;
(vi) Your instructions require you to act OTHERWISE than in accordance with the LAW OR with the provisions of THE HANDBOOK;
(vii) You are NOT COMPETENT OR LACK SUFFICIENT EXPERIENCE to handle the case

(1) (including your ability to work with vulnerable clients)
(viii) YOU DO NOT HAVE ENOUGH TIME TO DEAL WITH THE CASE, unless the circumstances mean that it would still be in the client’s best interests for you to accept the instructions;

(ix) There is a real prospect that you will NOT BE ABLE TO MAINTAIN YOUR INDEPENDENCE.
(1) Examples include cases where you are likely to be CALLED AS A WITNESS on a material question of fact

(x) You are NOT AUTHORISED or ACCREDITED to perform the work required by your instructions;
(1) Including where the case requires you to conduct litigation, and you have not been authorised to conduct litigation.

Question 2

Accepting a case where there is a conflict of interests?

Answer 2

You must NOT accept instructions to act in a case if:

rC21.2 - You CANNOT fulfil your obligation to ACT IN THE CLIENT’S BEST interest due to any existing or previous instructions;

rC21.2 - There is a CONFLICT OF INTEREST, or a REAL RISK of a conflict of interest, between your own personal interests and the interests of the prospective client;

rC21.3 - There is a CONFLICT OF INTEREST, or a REAL RISK of a conflict of interest, between the prospective client and one or more of your former or current clients, UNLESS:

1. (gC69) You FULLY DISCLOSE to the relevant clients and prospective clients (as appropriate) the extent and nature of the conflict; AND
2. rC21.3 - All of the clients who have an interest in the case give their INFORMED CONSENT to you acting; AND
3. gC69 - you are able to ACT IN THE BEST INTERESTS OF EACH CLIENT and independently

Question 3

When is there a real risk that there is a conflict of interests?

Answer 3

rC21.4

When there is a real risk that:

1. information CONFIDENTIAL to another former or existing client may be relevant to the prospective clients case, AND
2. the former or existing client DOES NOT CONSENT to DISCLOSURE of that confidential information, AND
3. You could NOT properly serve the prospective client’s best interests without disclosing the confidential information.

Question 4

Instructions and discretion

Answer 4

rC21.5 -

You must NOT accept instructions where your instructions seek to LIMIT YOUR ORDINARY AUTHORITY or DISCRETION in the conduct of the case in court

Question 5

Dodgy instructions

Answer 5

rC21.5

You must NOT accept instructions when…

You must not accept instructions where your instructions require you to act OTHERWISE than in accordance with the LAW OR with the provisions of THE HANDBOOK;

Question 6

Your out of your depth

Answer 6

rC21.8

You must NOT accept instructions when…

You are NOT COMPETENT OR LACK SUFFICIENT EXPERIENCE to handle the case … including your ability to work with vulnerable clients as per gC71

Question 7

You dont have time

Answer 7

rC21.9

You must NOT accept instructions when…

YOU DO NOT HAVE ENOUGH TIME TO DEAL WITH THE CASE, unless the circumstances mean that it would still be in the client’s best interests for you to accept the instructions;

Question 8

Independence

Answer 8

rC21.10

You must NOT accept instructions when…

There is a real prospect that you will NOT BE ABLE TO MAINTAIN YOUR INDEPENDENCE.

(1) Examples include cases where you are likely to be CALLED AS A WITNESS on a material question of fact

Question 9

Accreditation

Answer 9

rC21.7

You must NOT accept instructions when…

You are NOT AUTHORISED or ACCREDITED to perform the work required by your instructions;

(1) Including where the case requires you to conduct litigation, and you have not been authorised to conduct litigation.

Question 10

What is the guidance in relation to investigating and collecting evidence and taking witnesses statements and not accepting instructions?

Answer 10

The guidance is found at gC39 [gc39 NOT correct, find new one]

(a) In respect of 1(a)(ix)(1) above the BSB Guidance on Self-Employed Practice is highly relevant. The Guidance makes clear that if you are involved in the INVESTIGATION AND COLLECTION OF EVIDENCE in circumstances where you might be needed to give evidence about those activities then you MUST NOT accept a brief to conduct the case in court. This includes not accepting a brief to act as a junior barrister in a team of barristers (e.g. a case where you are to be led by a Q.C.), because a junior barrister in such a team is expected to be in a position to conduct the case in court if and when required.
(b) The ‘investigation and collection of evidence’ includes TAKING WITNESS STATEMENTS where you are interviewing the potential witness with a view to preparing a statement.
(c) The rule DOES NOT extend to settling a witness statement (i.e. drafting a statement which complies with the appropriate court rules and excludes irrelevant or inadmissible material) from a ‘proof of evidence’ statement which has already been taken by another person.
(d) The rule DOES NOT apply to a case where a barrister properly accepts a brief and then, as part of his conduct of the case AT COURT, has to URGENTLY take a statement from his client or a potential witness. It applies where a barrister has investigated or collected evidence BEFORE arriving at court.
(e) Appearing in a case in BREACH OF THIS RULE exposes the barrister to the risk of a WASTED COSTS ORDER if the case had to be adjourned as a result of the barrister’s withdrawal from the case, as well as ENFORCEMENT ACTION being taken by the BSB for breach of the Handbook.
(f) You have a duty to keep under review whether you should continue to act in any case in the light of any developments which might engage this rule (i.e. if you become involved in the collection or investigation of evidence during your conduct of the case).

Question 11

When MUST you return instructions already accepted?

Answer 11

(a) Where you have accepted instructions but one or more of the circumstances in rc21 above arises, you MUST CEASE TO ACT and return your instructions promptly.
(b) In addition, you MUST CEASE TO ACT and return your instructions if:
(i) The client REFUSES TO AUTHORISE you to make some disclosure to the court which your duty to the court requires you to make;
(ii) You become aware of the existence of a document which should have been but has not been disclosed, and the client refuses to authorise disclosure, contrary to your advice;
(iii) In a criminal or civil legal aid case, the FUNDING HAS BEEN WRONGLY OBTAINED BY FALSE OR INACCURATE INFORMATION and your client refuses to remedy the situation immediately.

Question 12

Your client refuses to authorise disclosure. What do you do?

Answer 12

rC25.1

In addition, you MUST CEASE TO ACT and return your instructions if:

(i) The client REFUSES TO AUTHORISE you to make some disclosure to the court which your duty to the court requires you to make;

Question 13

Your client refuses to disclose a document contrary to your advice. What do you do?

Answer 13

rC25.3

In addition, you MUST CEASE TO ACT and return your instructions if:

You become aware of the existence of a document which should have been but has not been disclosed, and the client refuses to authorise disclosure, contrary to your advice;

Question 14

Funding has been wrongly obtained, what do you do?

Answer 14

rC25.1

In addition, you MUST CEASE TO ACT and return your instructions if:

In a criminal or civil legal aid case, the FUNDING HAS BEEN WRONGLY OBTAINED BY FALSE OR INACCURATE INFORMATION and your client refuses to remedy the situation immediately.

Question 15

What are the circumstances in which you MAY return your instructions?

Answer 15

Circumstances where you MAY RETURN instructions

(a) You MAY CEASE TO ACT in a case and return your instructions if:
(i) Your PROFESSIONAL CONDUCT IS BEING CALLED INTO QUESTION; or
(ii) The CLIENT CONSENTS;
(iii) You become aware of PRIVILEGED OR CONFIDENTIAL INFORMATION or documents belonging to another person in the case in which you are instructed;

(for further guidance on this topic you are advised to consult the Bar Council Guidance on Material Disclosed to Counsel by Mistake and the SGS 2 Decision Tree, both of which are available on Moodle)

(iv) Despite all reasonable efforts, a hearing is fixed for a date when you are not available;
(v) Illness, injury, pregnancy, childbirth, bereavement or a similar matter makes you unable to perform the services required;
(1) You CANNOT rely on this rule to break a professional engagement for ANY OTHER personal reason.
(vi) You are unavoidably required to do JURY SERVICE;
(vii) You do NOT RECEIVE PAYMENT when due in accordance with agreed terms, AND you make clear to the client that non-payment will result in you ceasing to act, AND you give the client reasonable notice of the requirement to pay;
(viii) There is some other substantial reason for doing so.

Question 16

Your professional conduct is being called into question.. what do you do?

Answer 16

rC26.1

You MAY CEASE TO ACT in a case and return your instructions if Your PROFESSIONAL CONDUCT IS BEING CALLED INTO QUESTION

Question 17

Your client has consent to you returning your instructions. Can you?

Answer 17

rC26.2

Yes, You MAY CEASE TO ACT in a case and return your instructions if:

The Client Consents

Question 18

Material was disclosed to you by mistake. What do you do?

Answer 18

rC26.6

You MAY CEASE TO ACT in a case and return your instructions if:

You become aware of PRIVILEGED OR CONFIDENTIAL INFORMATION or documents belonging to another person in the case in which you are instructed;
(1) (for further guidance on this topic you are advised to consult the Bar Council Guidance on Material Disclosed to Counsel by Mistake and the SGS 2 Decision Tree, both of which are available on Moodle)

Question 19

You now have a hearing for the same date… what do you do?

Answer 19

rC26.3.a

You MAY CEASE TO ACT in a case and return your instructions if:

Despite all reasonable efforts, a hearing is fixed for a date when you are not available

Question 20

What sort of matters are so serious you are allowed to return instructions?

Answer 20

rC26.3.b

You MAY CEASE TO ACT in a case and return your instructions if:

Illness, injury, pregnancy, childbirth, bereavement or a similar matter makes you unable to perform the services required;

(1) You CANNOT rely on this rule to break a professional engagement for ANY OTHER personal reason. (gC85)

Question 21

What about if you have jury service?

Answer 21

rC26.3.c

You MAY CEASE TO ACT in a case and return your instructions if:

You are unavoidably required to do JURY SERVICE

Question 22

What if you have not been paid by your client?

Answer 22

rC26.5

You MAY CEASE TO ACT in a case and return your instructions if:

You do NOT RECEIVE PAYMENT when due in accordance with agreed terms, AND you make clear to the client that non-payment will result in you ceasing to act, AND you give the client reasonable notice of the requirement to pay;

Question 23

MAY you return instructions for any other reason?

Answer 23

rC26.8

You MAY CEASE TO ACT in a case and return your instructions if:

There is some other substantial reason for doing so.

Question 24

What are the necessary steps you must take to return instructions?

Answer 24

rC27.1
(a) Notwithstanding the preceding rules, you MUST NOT cease to act or return instructions without either:

(i) Obtaining your client’s CONSENT; or
(ii) CLEARLY EXPLAINING to your client (lay or professional) the REASONS for doing so.
(b) Further, you MUST NOT return any instructions to another person (usually another barrister) WITHOUT CONSENT from either your lay or professional client. (rC27.2)
(i) If you are planning to withdraw from a case because it appears likely that you will be called as a witness in the proceedings on a material question of fact, you should ONLY WITHDRAW if you can do so WITHOUT JEOPARDISING the client’s interests. (gC73)

Question 25

Can you withhold your services?

Answer 25

rC28

The Requirement NOT to withhold your services

(a) You must not withhold your services or permit your services to be withheld:
(i) On the ground that the NATURE of the case is OBJECTIONABLE to you or to any section of the public;
(ii) On the ground that the CONDUCT, OPINIONS or BELIEFS of the prospective client are UNACCPETBALE to you or to any section of the public;
(iii) 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.
(b) This rule applies to any case irrespective of whether you are instructed by a solicitor or directly by a lay client.

gC88
The rule in 7(a)(iii) above operates to prevent barristers from refusing instructions because the client is entitled to Criminal or Civil Legal Aid funding.

Question 26

When does the cab rank rule apply?

Answer 26

rC29

The ‘Cab Rank’ Rule
(a) The rule applies when:

(i) You are acting as a SELF-EMPLOYED BARRISTER; AND
(ii) you receive instructions in a case from a PROFESSIONAL CLIENT; AND

(iii) you possess the appropriate SENIORITY/ EXPERIENCE/ KNOWLEDGE of the area of law to act in the case.
(b) In such circumstances, YOU MUST ACCEPT THE BRIEF (subject to the exceptions set out in 9 below).

Question 27

The cab rank rule applies irrespective of….

Answer 27

rC29

(c) This rule applies irrespective of the following:
(i) The IDENTITY of the client;
(ii) The NATURE of the case;
(iii) Whether client is PUBLICLY FUNDED or not;
(iv) Any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.

Question 28

Re Cab rank rule, does it matter who you receive instructions from?

Answer 28

gC91B

The Cab Rank Rule applies to instructions received from ANY (legal) PROFESSIONAL CLIENT (not just solicitors) regulated by another approved regulator

(i) the list of approved regulators includes: Legal Executives, patent attorneys, licensed conveyancers and law costs draftsmen

Question 29

What are the exceptions to the cab rank rule?

Answer 29

The ‘cab rank’ rule does NOT apply if:

(i) You are REQUIRED TO REFUSE the instructions pursuant to paragraph 3.1. above;
(ii) You have not been offered a proper fee for your services;
(1) In determining whether you have been offered a proper fee you must have regard to:

[a] the complexity, length and difficulty of the case;

[b] your ability, experience and seniority;

[c] the expense which you will incur.

(2) You are NOT obliged to accept a conditional fee agreement under this rule;
(iii) The instructions require you to do something other than in the course of ORDINARY WORKING TIME or require you to cancel an existing diary commitment;
(iv) The potential for professional negligence liability exceeds the level of professional indemnity insurance reasonably available to you;
(v) You are a QC and the instructions require you to act without a junior, where the circumstances require a junior;
(vi) The instructions require you to do any foreign work;

(vii) Your instructing solicitors:
(1) Are not accepting liability for your fees;
(2) Represent an unreasonable credit risk;
(3) Are instructing you as a lay client rather than in their capacity as a professional client;

(viii) In any case where you are NOT to be paid by the Legal Aid agency or the CPS, the ‘Cab Rank’ rule does not apply. because of one of the exceptions.

Question 30

When does the CAB rank rule not apply because funding is not from the LAA or CPS?

Answer 30

gC91 A

In any case where you are NOT to be paid by the Legal Aid agency or the CPS, the ‘Cab Rank’ rule does not apply if:

(1) Your fees have not been agreed; or
(2) Having required your fees to be paid before acceptance of instructions, those fees have not been paid;
(3) Accepting the instructions would require you to act other than in accordance with your standard contractual terms, or the Bar Council’s standard contractual terms.

(4) Examples of your professional client representing an unreasonable credit risk for the purposes of 9(a)(vii)(2) above include: rC30 gC90 gC91 gC91A
25

[a] They appear on the Bar Council’s list of Defaulting Solicitors;

[b] Another barrister has obtained judgment against them which remains unpaid;

[c] The firm is subject to insolvency, an IVA or PVA;

[d] There is evidence of other unsatisfied court judgments that call into question the solicitors’ ability to pay.

[e] Even where there is a serious credit risk you must explore alternative payment methods before refusing instructions, including, seeking payment of your fees on account, or payment into a 3rd party payment service.

Question 31

What are the rules when accepting instructions?

Answer 31

rC22.1

When you first accept instructions to act in a matter you MUST confirm in writing:

(i) Acceptance of the instructions; AND
(ii) The terms/ basis on which you will be acting, including the basis of any charging.

gC77 - It is acceptable for your clerk to confirm acceptance and terms of acceptance on your behalf.