Chapter 4: CD 3, CD 4 and CD 5

Question 1

CD 3 You must act with HONESTY, and with INTEGRITY

CD 4 You must maintain your INDEPENDENCE

CD 5 You must not behave in a way which is likely to DIMINISH THE TRUST AND CONFIDENCE which the PUBLIC places in you or the profession

Question 2

The extent of the duties under CDs 3 and 4

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Answer 2

(a) You must NOT do anything which could reasonably be seen by the public to undermine your HONESTY, INTEGRITY (CD 3) and INDEPENDENCE (CD 4).

(i) Your duty to act in accordance with CDs 3 and 4 overrides your duty to act in the client’s best interests (CD 2).

Question 3

Personal Responsibility for all work done

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Answer 3

You are PERSONALLY RESPONSIBLE for your own conduct and for your professional work. You MUST use your own PROFESSIONAL JUDGMENT in relation to matters in which you are instructed. You must do this IRRESPECTIVE of the views of your client, professional client, employer or any other person

(i) You are also personally responsible for the service provided by those who represent you in your dealings with clients, e.g. your clerks.

(ii) You can outsource certain tasks to others (e.g. research) but you remain personally responsible for that work as well.

Question 4

The duty to act with Honesty, and with integrity

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Answer 4

Your duty to act with honesty, and with integrity includes the following:

You MUST:

(i) NOT knowingly or recklessly MISLEAD or attempt to mislead ANYONE;

(ii) NOT draft any statement of case, witness statement, affidavit or other document containing:

(1) Any statement of fact or contention that is NOT SUPPORTED by your client or your instructions;

(2) Any contention which is NOT PROPERLY ARGUABLE;

(3) Any allegation of FRAUD, UNLESS you have CLEAR INSTRUCTIONS to allege fraud and REASONABLY CREDIBLE material which establishes an arguable case of fraud;

(4) (in 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 5

The duty to act with Honesty, and with integrity

Your duty to act with honesty, and with integrity includes the following:

You MUST:

Answer 5

(iii) NOT encourage a witness to give evidence which is MISLEADING or UNTRUTHFUL.

Question 6

The duty to act with Honesty, and with integrity

Your duty to act with honesty, and with integrity includes the following:

You MUST:

Answer 6

(iv) NOT REHEARSE, PRACTISE WITH OR COACH a witness in respect of their evidence.

Question 7

The duty to act with Honesty, and with integrity

Your duty to act with honesty, and with integrity includes the following:

You MUST:

Answer 7

(v) NOT COMMUNICATE with any witness (including the client) about the case while the witness is giving evidence, WITHOUT the permission of the opposing side or the court.

(1) This applies to any breaks (e.g. lunch or overnight) in the
witness’s evidence.

Question 8

The duty to act with Honesty, and with integrity

Your duty to act with honesty, and with integrity includes the following:

You MUST:

Answer 8

(vi) NOT make or offer PAYMENTS to any witness contingent on their evidence or the outcome of the case.

(vii) only propose or accept LEGAL FEE ARRANGEMENTS.

Question 9

The Duty to Act Independently

(a) The following may reasonably be seen as compromising your independence:

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Answer 9

(i) Offering, promising or giving to any client, professional client or intermediary:

(1) Any COMMISSION or REFERRAL FEE (of whatever size);

(2) A GIFT (apart from items of modest value);

Question 10

The Duty to Act Independently

(a) The following may reasonably be seen as compromising your independence:

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Answer 10

(ii) LENDING MONEY to any client, professional client or intermediary;

Question 11

The Duty to Act Independently

(a) The following may reasonably be seen as compromising your independence:

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Answer 11

Accepting ANY MONEY from any client, professional client or intermediary, UNLESS it is a payment for your professional services or reimbursement for expenses made on client’s behalf.

(1) If you are offered a GIFT by any client, professional client or intermediary you must consider carefully whether the CIRCUMSTANCES and SIZE of the gift would reasonably lead others to think that your INDEPENDENCE had been COMPROMISED. If it would lead to that conclusion, you should REFUSE to accept the gift.

(2) The giving or receiving of ENTERTAINMENT at a disproportionate level may give rise to a similar issue and should not be offered or accepted if it would lead others to think that your INDEPENDENCE had been COMPROMISED.

Question 12

Media Comment

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Answer 12

(a) You must ensure that any comment that you make in the media does NOT and is not reasonably seen as UNDERMINING YOUR
INDEPENDENCE.

(b) Further, any such comment must NOT bring the PROFESSION, nor any other BARRISTER into DISREPUTE.

Question 13

Media Comment

Answer 13

(c) The BSB Media Comment Guidance makes clear that certain ethical rules will limit the circumstances in which it is appropriate for
barristers to comment on cases in which they have been instructed.

(d) The rules on media comment DO NOT require any barrister to make comments.

Question 14

Media Comment

Answer 14

Barristers considering making a media comment should consider the following factors:

(i) The NATURE and TYPE of proceedings;

(ii) The STAGE the proceedings have reached;

(iii) The need to ensure that media comment does NOT PREJUDICE
THE ADMINISTRATION OF JUSTICE;

(iv) The NATURE OF THE COMMENT it is proposed to make.

Question 15

Media Comment

Answer 15

In addition barristers should consider carefully whether:

(1) Commenting on individual cases in which they have acted is appropriate;

(2) The proposed comment would require any individual CLIENT’S CONSENT.

Question 16

Media Comment

Answer 16

(g) Barristers are reminded that compliance with Core Duties 2 – 6 should be considered before making a media comment.

(h) Barristers are reminded that:

(1) Media comment which causes a substantial risk of SERIOUS PREJUDICE to current or pending proceedings may lead to
proceedings for CONTEMPT OF COURT;

(2) Media comment carries the risk of PERSONAL LIABILITY in defamation or malicious falsehood against the barrister. Your professional indemnity insurance does not usually cover such liability.

Question 16

Social Media

Answer 16

(a) The BSB Guidance on Use of Social Media applies to barristers both in a personal and professional capacity

Question 17

Social Media

Answer 17

(b) Both practising and unregistered barristers are reminded that they are
bound by CD 5 at ALL TIMES and are expected to conduct themselves in an appropriate manner. Comments on social media designed to DEMEAN or INSULT are likely to breach CD 5.

Question 18

Social Media

Answer 18

(c) Becoming involved in heated debates or arguments could potentially breach CDs 3 and or 8. Care should always be taken over the CONTENT and TONE of what you are posting or sharing.

Question 19

Social Media

Answer 19

(d) Your risk breaching CD 6 by sending confidential communications to your client over social media. You should avoid doing so unless:

(i) Your client has agreed to this form of communication; and

(ii) You are satisfied that your client’s confidentiality will not be at risk.

Question 20

Social Media

Answer 20

(e) Your client’s confidentiality can be put at risk in less obvious ways, for example by posting a status update “checking in” to a particular office or other location.

Question 21

Additional Matters Relevant to CDs 3and5

In addition to these rules, other CONDUCT WHICH IS LIKELY to be treated as a breach of CD 3 and your duty under CD 5 includes (but is not limited to):

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Answer 21

(i) Paying or receiving referral fees; (see 8 below for further details)

Question 22

In addition to these rules, other CONDUCT WHICH IS LIKELY to be treated as a breach of CD 3 and your duty under CD 5 includes (but is not limited to):

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Answer 22

(ii) CRIMINAL CONDUCT, other than minor criminal conduct;

(1) Minor criminal conduct includes:

[a] An offence committed in the UK which is a FIXED PENALTY OFFENCE under RTOA 1988

[b] An offence committed in the UK or abroad which is dealt with by a procedure similar to that for a fixed penalty offence.

[c] An offence whose main ingredient is the unlawful parking of a motor vehicle.

Question 23

In addition to these rules, other CONDUCT WHICH IS LIKELY to be treated as a breach of CD 3 and your duty under CD 5 includes (but is not limited to):

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Answer 23

(iii) Seriously OFFENSIVE or DISCREDITABLE conduct towards 3rd parties;

(iv) DISHONESTY;

(v) Unlawful VICTIMISATION OR HARASSMENT;

(vi) ABUSE of your professional position

(1) Abuse of your professional position includes referring to your status as a barrister in a context where it is irrelevant,

e.g. in a private dispute.

Question 24

CONDUCT WHICH IS NOT LIKELY to be treated as a breach of CDs 3 or 5 includes (but is not limited to):

Answer 24

(i) MINOR criminal offences

(ii) Conduct in your PRIVATE OR PERSONAL LIFE, unless this involves:

(iii) Abuse of your professional position; or

(c) Committing a criminal offence, OTHER than a minor criminal offence.

Question 25

Referral Fees

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Answer 25

(a) Making or receiving payments for referral fees is inconsistent with your duties under CDs 2, 3, 4 and may also breach CD5.

Question 26

Referral Fees

The rules on referral fees do NOT prohibit proper expenses
that are not a reward for referring work, such as payments for:

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Answer 26

(i) Clerking and administrative services (including where these are outsourced);

(ii) Membership subscriptions to ADR bodies that appoint or recommend mediators, arbitrators or adjudicators.

(iii) Advertising or publicity, which are payable irrespective of whether any work is referred or not.

Question 27

The Guidance on Referral and Marketing Arrangements for Barristers Permitted by the BSB document deals extensively with the issue of referral fees. It sets out a number of features which the BSB will consider when determining whether a payment by a barrister to a 3rd party making a referral, or acting as an introducer, or providing
administrative or marketing services will constitute a prohibited referral fee.

Answer 27

(i) Features that WILL indicate that the payment is a prohibited referral fee:

(1) The payment amounts to the offence of bribery under the Bribery Act 2010;

(2) The payment is made in connection with a personal injury work AND is prohibited by LASPO 2012

Question 28

The Guidance on Referral and Marketing Arrangements for Barristers Permitted by the BSB document deals extensively with the issue of referral fees. It sets out a number of features which the BSB will consider when determining whether a payment by a barrister to a 3rd party making a referral, or acting as an introducer, or providing
administrative or marketing services will constitute a prohibited referral fee.

Answer 28

(ii) Features which are LIKELY TO indicate that the payment is a prohibited referral fee:

(1) The payment is made to a professional person acting for the lay client who has a duty to act in the best interests of that client when making a referral;

(2) The payment to an introducer is linked to specific referrals;

(3) The payment to an introducer for services provided by the barrister is not a set fee but is linked to the number of referrals;

(4) In a publicly funded case, the fee paid to an instructed barrister is less than the Legal Aid Agency fee for those advocacy services;

(5) The payment is a condition of receiving a referral;

(6) A payment for marketing or related services is higher than market rates

Question 29

The Guidance on Referral and Marketing Arrangements for Barristers Permitted by the BSB document deals extensively with the issue of referral fees. It sets out a number of features which the BSB will consider when determining whether a payment by a barrister to a 3rd party making a referral, or acting as an introducer, or providing
administrative or marketing services will constitute a prohibited referral fee.

Answer 29

(iii) Features which MAY suggest that the payment is not a referral fee:

(1) The payment is made to an employee or agent of the barrister making the payment, e.g. a clerk or an outsourced clerking service, in return for the services they provide to the barrister and not for onward payment to any person who refers work to the barrister;

(2) The payment is made to a marketing or advertising agency and the amount does not depend on whether any instructions are received or on the value of any instructions
received;

(3) The payment is made to an introducer who is not an authorised person or other professional person for the purpose of being included in a list of providers of legal services and the amount is not dependent on the number of referrals received from that introducer.

Question 30

The Guidance on Referral and Marketing Arrangements for Barristers Permitted by the BSB document deals extensively with the issue of referral fees. It sets out a number of features which the BSB will consider when determining whether a payment by a barrister to a 3rd party making a referral, or acting as an introducer, or providing
administrative or marketing services will constitute a prohibited referral fee.

Answer 30

(iv) Remember that a payment for these purposes includes not only financial payments but also PAYMENTS IN KIND such as providing services or facilities at reduced or no cost.