C2 Behaving Ethically

Question 1

HONESTY, INTEGRITY AND INDEPENDENCE

rC8- You must not do anything which

Answer 1

could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).

Question 2

rC9- Your duty to act with honesty and integrity under CD3 includes the following requirements:

Answer 2

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;

Question 3

rC9 -

Your duty to act with honesty and integrity under CD3 includes the following requirements:

Answer 3

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 4

Guidance on rC8 and rC9 and their rel to CD 1,2,3,4 and 5

gC14- Your honesty, integrity and independence are fundamental.

Answer 4

The interests of justice (CD1) and the client’s best interests (CD2) can only be properly served, and any conflicts between the two properly resolved, if you conduct yourself honestly and maintain your independence from external pressures, as required by CD3 and CD4. You should also refer to Rule C16 which subjects your duty to act in the best interests of your client (CD2) to your observance of CD3 and CD4, as well as to your duty to the court (CD1).

Question 5

gC15- Other rules deal with specific aspects of your obligation to act in your client’s best interests (CD2) while maintaining honesty, integrity (CD3) and independence (CD4)

Answer 5

such as rule C21.10 (not acting where your independence is compromised), rule C10 (not paying or accepting referral fees) and C21 (not acting in circumstances of a conflict of interest or where you risk breaching one client’s confidentiality in favour of another’s).

Question 6

gC16- Rule C3 addresses how your conduct is perceived by the public.

Answer 6

Conduct on your part which the public may reasonably perceive as undermining your honesty, integrity or independence is likely to diminish the trust and confidence which the public places in you or in the profession, in breach of CD5. Rule C8 is not exhaustive of the ways in which CD5 may be breached.

Question 7

gC17- In addition to your obligation to only propose, or accept, fee arrangements which are legal in Rule C9.7,

Answer 7

you must also have regard to your obligations in relation to referral fees in Rule C10 and the associated Guidance.

Question 8

Examples of how you may be seen as compromising your independence

gC18- The following may reasonably be seen as compromising your independence in breach of Rule C8

Answer 8

1) offering, promising or giving:
a) any commission or referral fee (of whatever size) – note that these are in any case prohibited by rule C10 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 re-imbursement of expenses or of disbursements made on behalf of the client ;

Question 9

Examples of how you may be seen as compromising your independence

gC19- If you are offered a gift by a current, prospective or former client , professional client or other intermediary,

Answer 9

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 10

Examples of how you may be seen as compromising your independence

gC20- he giving or receiving of entertainment at a disproportionate level may also

Answer 10

give rise to a similar issue and so should not be offered or accepted if it would lead others reasonably to think that your independence had been compromised.

Question 11

Examples of how you may be seen as compromising your independence

gC21- Guidance gC18 to gC20 above is likely to be more relevant where you are a self-employed barrister , a BSB entity , an authorised (non-BSB) individual, an employed barrister (BSB entity ) or a manager of a BSB entity . 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 payments to which Rule rC10 applies,

Answer 11

you may make or receive such payments only in your capacity as such and as permitted by the rules of your approved regulator or employer (as appropriate). For further information on referral fees, see the guidance at gC32).

Question 12

Examples of how you may be seen as compromising your independence

gC22- The former prohibition on practising barristers expressing a personal opinion in the media in relation to any future or current proceedings in which they are briefed has been removed.

Answer 12

Practising barristers must, nevertheless, ensure that any comment they may make does not undermine, and is not reasonably seen as undermining, their independence. Furthermore, any such comment must not bring the profession, nor any other barrister into disrepute.

Question 13

Examples of what your duty to act with honesty and integrity may require

gC23- Rule C9 sets out some specific aspects of your duty under

Answer 13

CD3 to act with honesty and integrity.

Question 14

Examples of what your duty to act with honesty and integrity may require

gC24- where the other side is legally represented and you are conducting correspondence in respect of the particular matter,

Answer 14

you are expected to correspond at all times with that other party’s legal representative – otherwise you may be regarded as breaching CD3 or Rule C9.

Question 15

Other possible breaches of CD3 and/or CD5

gC25- A breach of Rule C9 may also constitute a breach of CD3 and/or CD5. Other conduct which is likely to be treated as a breach of CD3 and/or CD5 includes (but is not limited to):

Answer 15

1) subject to Guidance C26 below, breaches of Rule C8;
2) breaches of Rule C10;
3) criminal conduct, other than minor criminal offences (see Guidance C27);
4) seriously offensive or discreditable conduct towards third parties;
5) dishonesty;
6) unlawful victimisation or harassment ; or
7) abuse of your professional position.

Question 16

Other possible breaches of CD3 and/or CD5

gC26- For the purposes of Guidance C25.7 above, referring to your status as a barrister , for example on professional notepaper, in a context where it is irrelevant, such as in a private dispute,

Answer 16

may well constitute abuse of your professional position and thus involve a breach of CD3 and/or CD5.

Question 17

Other possible breaches of CD3 and/or CD5

gC27- Conduct which is not likely to be treated as a breach of Rules C8 or C9, or CD3 or CD5, includes (but is not limited to):

Answer 17

1) minor criminal offences;
2) your conduct in your private or personal life, unless this involves:
a) abuse of your professional position; or
b) committing a criminal offence , other than a minor criminal offence .

Question 18

Other possible breaches of CD3 and/or CD5

gC28- For the purpose of Guidance C27 above, minor criminal offences include:

Answer 18

1) an offence committed in the United Kingdom which is a fixed-penalty offence under the Road Traffic Offenders Act 1988; or
2) an offence committed in the United Kingdom or abroad which is dealt with by a procedure substantially similar to that for such a fixed-penalty offence; or
3) an offence whose main ingredient is the unlawful parking of a motor vehicle.

Question 19

REFERRAL FEES

rC10

Answer 19

You must not pay or receive referral fees.

Question 20

Guidance on rC10 and their rel to CD 2,2,4 AND 5

gC29- Making or receiving payments in order to procure or reward the referral to you by an intermediary of professional instructions is

Answer 20

inconsistent with your obligations under CD2 and/or CD3 and/or CD4 and may also breach CD5.

Question 21

Guidance on Rule rC10 and their relationship to CD2, CD3, CD4 and CD5

gC30- Moreover, 1 -
where public funding is in place, the Legal Aid Agency’s Unified Contract Standard Terms

Answer 21

explicitly prohibit contract-holders from making or receiving any payment (or any other benefit) for the referral or introduction of a client , whether or not the lay client knows of, and consents to, the payment;

Question 22

Guidance on Rule rC10 and their relationship to CD2, CD3, CD4 and CD5

gC30- Moreover, 2 -
whether in a private or publicly funded case, a referral fee to which the client has not consented may constitute

Answer 22

a bribe and therefore a criminal offence under the Bribery Act 2010;

Question 23

Guidance on Rule rC10 and their relationship to CD2, CD3, CD4 and CD5

gC30- Moreover, referral fees and inducements (as defined in the Criminal Justice and Courts Act 2015) are

Answer 23

prohibited where they relate to a claim or potential claim for damages for personal injury or death or arise out of circumstances involving personal injury ordeath personal injury claims: section 56 Legal Aid, Sentencing and Punishmentof Offenders Act 2012 and section 58 Criminal Justice and Courts Act 2015

Question 24

Guidance on Rule rC10 and their relationship to CD2, CD3, CD4 and CD5

gC31- Rule C10 does not prohibit proper expenses that are not a reward for referring work, such as genuine and reasonable payments for:

Answer 24

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 25

UNDERTAKINGS

rC11- You must within an agreed timescale or within a reasonable period of time comply

Answer 25

with any undertaking you give in the course of conducting litigation.

Question 26

Guidance on rC11

gC33- You should ensure your insurance

Answer 26

covers you in respect of any liability incurred in giving an undertaking.

Question 27

DISCRIMINATION

rC12- You must not discriminate unlawfully against, victimise or harass any other person on the

Answer 27

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 28

FOREIGN WORK

rC13- In connection with any foreign work you must comply with any applicable rule of conduct prescribed by the law or by any national or local bar of:

Answer 28

1) the place where the work is or is to be performed; and
2) the place where any proceedings or matters to which the work relates are taking place or contemplated;

unless such rule is inconsistent with any requirement of the Core Duties.

Question 29

FOREIGN WORK

rC14- If you solicit work in any jurisdiction outside England and Wales, you must

Answer 29

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

Question 30

Guidance on rC13 and C14

gC35- When you are engaged in cross border activities within a CCBE State other than the UK, you must

Answer 30

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.