CD 2, CD 6 and CD 7

Question 1

CD 2 You must act in the BEST INTERESTS of each client

CD 6 You must keep the affairs of each client CONFIDENTIAL

CD 7 You must provide a COMPETENT STANDARD OF WORK AND SERVICE to each
client

Question 2

How CD 2 relates to other Core Duties

Answer 2

Your duty under CD 2 is subject to your duties under CDs 1, 3 and 4

Question 2

The extent of the duties under CDs 2, 6 and 7

Your duty under CD 2 is to your …

Answer 2

(a) Your duty under CD 2 is to your LAY CLIENT and NOT to your professional client or other intermediary.

Question 3

(b) Your duty to act in accordance with CDs 2, 6 and 7 includes the following. You MUST:

Answer 3

(i) Promote FEARLESSLY and by all proper and lawful means the client’s BEST INTERESTS; rC15.1

(ii) Do so WITHOUT regard to your OWN INTERESTS or any consequences to you (which may include taking reasonable steps
to mitigate the effects of any breach of the Handbook); rC15.2

Question 4

(b) Your duty to act in accordance with CDs 2, 6 and 7 includes the following. You MUST:

Do so WITHOUT regard to the consequences to any other person including your instructing solicitor or employer).
rC15.3

Answer 4

(1) If you consider that your professional client, or another solicitor or barrister or any other person acting on your client’s behalf has been NEGLIGENT, you should ENSURE
that THE CLIENT IS ADVISED OF THIS.

gC51

Question 5

The extent of the duties under CDs 2, 6 and 7

You must:
(iv) NOT permit ANYONE (including your instructing solicitor or
employer) to LIMIT YOUR DISCRETION as to how the interests of
your client can best be served;
rC15.4

(v) Protect the CONFIDENTIALITY of each client’s affairs, except for disclosures which are required or permitted by law or to which the client gives INFORMED CONSENT.

rC15.5
rc15.6

Question 6

The extent of the duties under CDs 2, 6 and 7

You must:
(v) Protect the CONFIDENTIALITY of each client’s affairs, except for disclosures which are required or permitted by law or to which the client gives INFORMED CONSENT.

rC15.5
rc15.6

Answer 6

(1) There are very limited circumstances in which you would be required to make a disclosure by law without your client’s
consent. They generally arise in Proceeds of Crime Act cases or family law proceedings that involve the welfare of children

This duty extends to pupils of, and those who are devilling for, self-employed barristers as if the client of the self-employed barrister was the pupil’s or devil’s own client

[a] devilling is the practice of doing work in a case for another (usually more senior) member of chambers. It is usually done by 2nd or 3rd six pupils, or junior tenants. The ‘devil’ is paid by the barrister with conduct of the case for the work they do

gC46

Question 7

Advising on Different Legal Representation

Answer 7

This duty may require you to advise the client to be represented by:

(i) A DIFFERENT advocate or legal representative (whether more senior, or junior, or with different experience from you)

(ii) MORE THAN ONE advocate or legal representative (e.g. instructing a Q.C. and a junior)

(iii) FEWER advocates or legal representatives than have been instructed;

(iv) In a case where you have an instructing solicitor, DIFFERENT SOLICITORS.

gC49

Question 7

Advising on Different Legal Representation

Answer 7

(a) Your duty under CD 2 includes a duty to consider whether the client’s best interests are served by different legal representation, and if so, to advise the client accordingly.

rC17

Question 8

c) You may only accept instructions for MORE THAN ONE client if you are able to ACT IN THE BEST INTERESTS OF EACH CLIENT as if that client were your only client. If you are unable to act accordingly, you must ADVISE THE CLIENT TO SEEK DIFFERENT REPRESENTATION.
gC37

Answer 8

(i) This rule is especially relevant where you are instructed to represent two or more clients and there is a conflict of interest between two or more of them.

Question 9

Clash of Hearing Dates

A COMPETENT STANDARD OF WORK AND SERVICE (CD 7) includes:

rC18

Answer 9

A duty to inform your professional client (or lay client if directly instructed by them) if:

(1) it becomes apparent THAT YOU WILL NOT BE ABLE TO CARRY OUT YOUR INSTRUCTIONS WITHIN THE TIME REQUESTED, or

within a reasonable time after receipt of instructions; OR

(2) there is an appreciable RISK THAT YOU MAY NOT BE ABLE TO UNDERTAKE THE INSTRUCTIONS.

(ii) In these circumstances, you should make sure as far as possible that there is sufficient time to enable appropriate steps to be
taken to protect the client’s interests.

Question 10

The BSB Guidance on Clash of Hearing Dates contains the following requirements:

(i) You should make all reasonable efforts to prevent a clash of hearing dates. This requires effective:

(1) Communication with the court; and
(2) Diary management.

Answer 10

(ii) If it is impossible to avoid a clash of hearings, you must exercise your PROFESSIONAL JUDGEMENT in deciding which hearing to attend and which to return to another barrister.

(iii) Some types of hearing may take PRECEDENCE as a matter of law or procedure – you should take direction from the Court on this point if appropriate (e.g. if a judge has told you that you must attend a particular hearing then in the absence of other relevant
circumstances, that hearing will take precedence).

(iv) Where an order of precedence is not clear, you should consider your duty under CD2, and in particular, which client is likely to be MORE PREJUDICED by alternative representation being arranged at short notice. You should particularly consider the needs of VULNERABLE clients.

Question 11

Specific provisions relating to CD 7

Providing a COMPETENT STANDARD OF WORK AND SERVICE (CD 7) also
includes:

Answer 11

(i) Treating each client with COURTESY and CONSIDERATION;

(ii) Advising your client in TERMS THEY UNDERSTAND;

(iii) Taking all reasonable steps to avoid incurring UNNECESSARY
EXPENSE

gC38.1
gC38.2
gC38.3
gC38.4

Question 11

Clash of Hearing Dates

You should consider all the relevant circumstances of each case including:

(1) The LENGTH OF TIME you have been instructed on each case;

(2) The COMPLEXITY of each case;

(3) The AMOUNT OF WORK you have already done on each case (including whether you have already seen any of the clients in conference);

(4) The likely IMPACT on each client

You should take all reasonable steps to ASSIST clients to find alternative representation where you are unable to attend a hearing.

Question 12

Specific provisions relating to CD 7

Providing a COMPETENT STANDARD OF WORK AND SERVICE (CD 7) also
includes:

Answer 12

(iv) READING YOUR INSTRUCTIONS PROMPTLY

(1) This will be particularly important where there is a time limit or limitation period in the case.

(v) Doing what you can to ensure that YOUR CLIENT UNDERSTANDS THE LEGAL PROCESS and what to expect from it and you.

(vi) Avoiding any UNNECESSARY DISTRESS to your client.

(1) This is particularly important when you are dealing with a VULNERABLE client.

(vii) Keeping professional knowledge and skills UP TO DATE.

(viii) Regularly taking part in PROFESSIONAL DEVELOPMENT activities.

gC41
gC41
gC38.3
gC39

Question 13

Specific provisions relating to CD 7

Providing a COMPETENT STANDARD OF WORK AND SERVICE (CD 7) also
includes:

(ix) Complying with any specific training requirements of the BSB before undertaking certain activities such as:

(1) Attending a police station to advise a suspect (see 6 below);

(2) Undertaking public access work (see Chapter 10).

gC39

Question 14

Attending at a police station to advise a suspect

Answer 14

(a) The second part of the BSB Guidance on Self-Employed Practice gives guidance to barristers who are attending at police stations.

Question 15

Attending at a police station to advise a suspect

Answer 15

(b) In summary the guidance includes:

(i) A requirement to undertake the TRAINING REQUIREMENTS imposed by the BSB before undertaking such work;

(ii) The need to comply with the training requirements specified by the Legal Aid Agency (where the case is publicly funded), or to obtain an exemption from those or the BSB’s requirements.

(iii) Barristers undertaking advice work must have particular regard to the RISK THAT as a result of their attendance at a police station
THEY MAY VERY WELL BE REQUIRED TO GIVE EVIDENCE at a subsequent hearing (e.g. to explain what advice they gave to the client in respect of agreeing or refusing to answer questions in interview). If such a risk exists then they should NOT ACCEPT A BRIEF to represent the client in any subsequent trial, Newton Hearing or voire dire.

(iv) Such a risk is likely to exist UNLESS the client is going to enter guilty pleas to any or all charges on a basis that is acceptable to
the prosecution.

(v) Barristers must keep DETAILED, CONTEMPORANEOUS NOTES of events at the police station.

Question 16

Not misleading clients about the services you are offering

rC19

You RISK MISLEADING A CLIENT (and thus breaching the rules set out above) in the following circumstances:

Answer 16

(i) Knowingly or recklessly publishing ADVERTISING MATERIAL which is INACCURATE or likely to MISLEAD.

(ii) If your chambers branding or advertising gives the appearance of an entity or partnership, without making clear that members of chambers are self-employed and NOT responsible for each other’s work;

(iii) Charging at your own hourly rate for work done by a pupil or devil;

(iv) If you are a PUPIL, HOLDING YOURSELF OUT AS A MEMBER OF CHAMBERS, or permitting your name to appear as such.

(v) If a self-employed barrister SHARES PREMISES WITH SOLICITORS without making it clear that the 2 entities are separate and
independent;

(vi) If you carry out PUBLIC ACCESS WORK but are NOT AUTHORISED TO CONDUCT LITIGATION, and you do not make this clear to a client.

gC57
gC56
gC59
gC62
gC54
gC58

Question 16

Not misleading clients about the services you are offering

rC19

Question 16

Not misleading clients about the services you are offering

rC19

Answer 16

If you supply legal services you must NOT MISLEAD, or cause or permit to be misled, any client or potential client about:

(i) The NATURE AND SCOPE of the legal services on offer;

(ii) The TERMS on which they are supplied;

(iii) WHO WILL CARRY OUT THE WORK and the basis of CHARGING;

(iv) WHO IS LEGALLY RESPONSIBLE for the provision of the services;

(v) Whether YOU ARE ENTITLED to supply them;

(vi) The extent to which YOU ARE REGULATED when supplying them and by whom;

(vii) The extent to which you are covered by PROFESSIONAL INDEMNITY INSURANCE.