CD 7 - A COMPETENT STANDARD OF WORK AND SERVICE (CD 7)

Question 1

What Core Duty is engaged by Clash of hearing dates?

Answer 1

CD 7

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

rC18 - 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 2

rC18

Answer 2

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 3

What are reasonable efforts to have taken to prevent a clash of hearing dates?

Answer 3

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.

Question 4

Which case do you return?

Answer 4

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

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.

Question 5

Which case takes precedence in case of diary clash?

Answer 5

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 6

What are the relevant considerations that you must take into account in case of diary clash?

Answer 6

Further, 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 7

How do you describe a competent standard of work and service?

Answer 7

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

(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;

Question 8

gC38.1

Answer 8

Treating each client with COURTESY and CONSIDERATION;

Question 9

gC38.2

Answer 9

Advising your client in TERMS THEY UNDERSTAND;

Question 10

gC38.3

Answer 10

Taking all reasonable steps to avoid incurring UNNECESSARY EXPENSE;

Question 11

When do you read your instructions?

Answer 11

gC38.4

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

Question 12

What is your duty re clients understanding of case?

Answer 12

gC41

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

Question 13

What must you ensure your client is not subject to?

Answer 13

gC41

Avoiding any UNNECESSARY DISTRESS to your client.

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

Question 14

What is your duty regarding your own knowledge?

Answer 14

gC38.3

Keeping professional knowledge and skills UP TO DATE.

Question 15

gC38.3

Answer 15

Keeping professional knowledge and skills UP TO DATE.

Question 16

Professional Development?

Answer 16

gC39

Regularly taking part in PROFESSIONAL DEVELOPMENT activities.

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

(1) Attending a police station to advise a suspect;
(2) Undertaking public access work (see Chapter 10).

Question 17

Note

Answer 17

The Guidance on Investigating and Collecting Evidence and Taking Witness Statements deals with how barristers should assess the risk of being called upon to give evidence in a case when accepting a brief.

Question 18

Misleading clients about the services you offer

Answer 18

rC19

Not misleading clients about the services you are offering

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.

Question 19

Situations where you risk misleading a client (and thus breaching the rules set out in rC19) in the following circumstaces:

Answer 19

(i) Knowingly or recklessly publishing ADVERTISING MATERIAL which is INACCURATE or likely to MISLEAD. (gC57)
(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; (gC56)
(iii) Charging at your own hourly rate for work done by a pupil or devil; (gC59)
(iv) If you are a PUPIL, HOLDING YOURSELF OUT AS A MEMBER OF CHAMBERS, or permitting your name to appear as such (gC62)
(v) If a self-employed barrister SHARES PREMISES WITH SOLICITORS without making it clear that the 2 entities are separate and independent; (gC54)
(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. (gC58)