CD 10 Flashcards
CD 10
You must take reasonable steps to MANAGE YOUR PRACTICE… COMPETENTLY and in such a way as to achieve compliance with your legal and regulatory obligations
What is the scope of the duty?
rC87
The scope of the Duty
(a) You must take reasonable steps to ensure that:
(i) Your practice is EFFICIENTLY and PROPERLY ADMINISTERED; and
(ii) PROPER RECORDS of your practice are kept.
What are your duties regarding record keeping?
rC88
(a) You MUST:
(i) Ensure that adequate records supporting fees charged or claimed in a case are kept until the later of the following:
(1) Your fees have been paid; and
(2) Any assessment of costs in the case has been completed and the time for lodging an appeal against that assessment has expired without an appeal being lodged, or any such appeal has been finally determined.
(ii) Provide your client with records or details of work that you have done as may be reasonably required for verifying your charges.
What are your duties re Insurance?
rC76
(a) You must:
(i) Ensure that you have ADEQUATE INSURANCE (taking into account the nature of your practice) which covers ALL legal services you supply to the public;
(ii) Comply with any notice issued by the BSB which stipulates a minimum level of insurance and/or minimum terms for the insurance (including any time specified for meeting such requirements).
rC77
When acting as a self-employed barrister you MUST be a Bar Mutual Indemnity Fund (‘BMIF’) member unless:
(i) You are a pupil who is covered by your pupil supervisor’s insurance;
rC78
c) As a member of BMIF you must:
(i) Pay your insurance premium promptly;
(ii) Supply such information as BMIF may require of you.
How do barristers get money?
Its hard…. rC73
(a) A barrister in private practice must NOT RECEIVE, CONTROL or HANDLE client money, apart from what the client pays you FOR YOUR SERVICES.
gC103
This rule applies to anyone acting on your behalf.
gC103
The rule prohibits you from holding client money or other assets yourself, or through any agent, third party or nominee.
gC106
A fixed FEE PAID IN ADVANCE is NOT client money for the purposes of this rule.
What are the principles if you request an ‘upfront’ fixed fee?
gC107
If you decide to request an ‘upfront’ fixed fee from a prospective client before agreeing to work on their behalf you should first have regard to the following principles:
(1) You should accurately estimate the likely time commitment and only take payment when you are satisfied that:
[a] It is a reasonable payment for the work being done;
[b] In a public access case, that it is suitable for you to take the case.
(2) If the amount of work required is unclear, you should consider staged payments;
(3) You should not accept an ‘upfront’ fee in advance before considering whether you have sufficient experience/expertise to do the case and whether you can complete the work in a reasonable timeframe.
(4) If the client gives informed consent, you may take an ‘upfront’ fixed fee in advance on the basis that you will return any outstanding money if the actual fee is lower than the upfront fee because e.g. not as much work needed to be done as originally anticipated.
(5) However, any such arrangement must be reduced to writing before the fee is paid
(6) It must be made clear to the client that in the circumstances any difference between the fixed fee and the eventual fee is NOT being held on trust for the client.
What is an Association?
An ASSOCIATION is defined as:
(i) Practising barristers, second six pupils and registered European lawyers practising as a CHAMBERS, or
(ii) Any of such people sharing premises and/or costs and/or using a common vehicle for obtaining or distributing work with any person OTHER THAN a BSB regulated person.
The definition includes: barristers, registered European lawyers, solicitors, BSB authorised bodies, managers of BSB authorised bodies, legal executives, patent attorney, law costs draftsmen and licensed conveyancers
What must you not do as an association?
rC79
You MUST NOT do anything as part of an association, which you are otherwise PROHIBITED from doing.
gC127
You MUST NOT act in an association with a person where by doing so you may reasonably be considered to be bringing the profession into DISREPUTE contrary to CD 5.
When must you tell the BSB about your association?
rC80
If you are part of an association on more than a one off basis you must NOTIFY THE BSB and provide such details as they may require.
gC127
As a member of chambers you are not responsible for the conduct of other members. HOWEVER, your chambers constitution should be drafted to allow for the EXCLUSION of members whose CONDUCT is reasonably considered to have DIMINISHED THE TRUST placed in the profession by the public.
