Behaving ethically Flashcards
Application of rules
Every rule in C2 applies to practising barristers and rC8 also applies to unregistered barristers.
Duty to prevent discrimination occurring
Self-employed members of chambers are collectively and individually responsible for making sure that unlawful discrimination does not occur, e.g. in the type of client instructions which are accepted, how work within chambers is allocated, and how clients and staff are treated.
rC8
You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity and independence.
rC9
Prohibitions against conduct which would be in breach of the duty to act with honesty and integrity. Includes misleading the court, and making unsupported allegations of fraud.
rC8 - applies to all barristers at all times
- e.g. accepting a gift from a client in some circumstances.
- conduct which is unlikely to be a breach: minor criminal offences e.g. parking and minor road traffic offences, conduct in personal or private life unless it involves an abuse of your professional position.
Witness misleading
You must not (a) encourage a witness to give misleading or untruthful evidence, (b) rehearse, practice with, or coach a witness in their evidence, or (c) communicate with any witness, including your client, when they are giving evidence (i.e. when the witness is in purdah - if there is an adjournment in the middle of them giving their evidence)
Payments to witnesses
rC9.6: 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. Such conduct may also be a criminal offence under the Bribery Act 2010.
Money, fees and your independence
May reasonably be seen as compromising your independence if:
- You offer, promise or give to any client, professional client or other intermediary (a) any commission or referral fee of whatever size and (b) a gift apart from items of modest value
- You lend money to any client, professional client or other intermediary
- You accept 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.
Fee arrangements
- rC9.7: you must only propose or accept fee arrangements which are legal.
- Examples of legal fee arrangements:
(a) Fixed fee: the barrister is paid a fixed amount for a specific piece or pieces of work. This is the most common type of fee arrangement
(b) Hourly rate: the barrister is paid an agreed sum per hour
(c) Conditional fee arrangement: the barrister is not paid, or not paid more than an agreed amount, if the client’s case does not succeed.
Client money
- Barristers are not allowed to hold client money on account in any circumstances.
- A payment of a fixed fee in advance is not holding client money.
- Client money is money which might need to be paid back to the client.
Entertainment
gC20: the giving or receiving of entertainment at a disproportionate level may also give rise to a similar issue and should not be offered or accepted if it would lead others to reasonably think that your independence has been compromised.
Gifts
gC19: 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.
Gifts which are of high financial value or obviously disproportionate given the nature of your instructions should be refused.
Legally represented opponents
- If the other side is represented by a solicitor or other professional representative, you must only correspond with that representative and not with the lay client (gC26)
- However, in cases where they are unrepresented, you are permitted to correspond directly with them.
- This rule will usually only be relevant when you are instructed on a direct public access basis. If you do not have an instructing solicitor, you are more likely to need to engage in correspondence with the other side, as this is something your instructing solicitor would otherwise do.
Referring to your status as a barrister
Referring to your status as a barrister in an irrelevant context e.g. a private dispute may amount to abuse of your position. An example is using professional note paper in the context of a private dispute.
Other conduct likely to breach CD3 and CD5
- seriously offensive or discreditable conduct towards third parties
- unlawful victimisation or harassment
- dishonesty (e.g. making a false declaration on Call, inflating marks or experience on an application form, falsification of documents, criminal convictions e.g. theft/perjury/fraud, deliberate misuse of client money, dishonesty in disciplinary hearings, false or misleading statements on websites or promotional material)
Referral fees
Rule C10 prohibits barristers from receiving referral fees: any payment or other consideration made in return for the referral of professional instructions by an intermediary. An intermediary is any person by whom a self-employed barrister is instructed on behalf of a client. This includes a professional client, e.g. a solicitor.
Bribery and personal injury instructions
There are two categories of payments that will always fall into the category of a prohibited referral fee:
(1) A referral fee to which the lay client has not consented (bribery)
(2) A referral fee for a claim or potential claim for personal injury damages (including fatalities)
Genuine and reasonable payments (not referral fees)
- Clerking and administrative services (even if outsourced)
- Membership subscriptions to ADR bodies that appoint or recommend a person to provide mediation, arbitration or adjudication services
- Advertising and publicity expenses which are payable whether or not any work is referred
Discounted fee rates
- It is not an uncommon practice to charge out junior barristers at heavily discounted fee rates.
- The provision of junior barristers to carry out work below the market may in certain circumstances amount to a disguised commission payment (i.e. a prohibited referral fee) to the solicitor.
Categories of unlawful discrimination
- Direct discrimination: A discriminates against B if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
- Indirect discrimination: A policy, practice or rule which applies to everybody in the same way but places people who share a protected characteristic at a disadvantage.
Key areas in which discrimination is prohibited
(1) Employment (recruitment and retention of staff)
2) Service delivery (accepting instructions
Justification of indirect discrimination
Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.
Service provision
- Barristers must not discriminate unlawfully in providing their services to clients, e.g. it would be unlawful to refuse instructions from someone with a disability (e.g. blindness) if the same instructions from someone without that impediment would have been accepted.
- It would also be unlawful to charge higher fees to someone with a protected characteristic.
- This extends beyond provision of services by individual barristers to individual clients, e.g. where chambers provides conference rooms, it would be unlawful for chambers to refuse its service to a religious group on the grounds that members of chambers find their views unpalatable.
