Chapter 7 - 2. 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

Question 1

2. CD 10

Answer 1

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

Question 2

1 The scope of the Duty

Answer 2

(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.

Question 3

2 Record Keeping

Answer 3

(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.

Question 4

Insurance

Answer 4

(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).

(b) 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;
(c) As a member of BMIF you must:
(i) Pay your insurance premium promptly;
(ii) Supply such information as BMIF may require of you.

Question 5

Handling Client Money

Answer 5

(a) A barrister in private practice must NOT RECEIVE, CONTROL or HANDLE client money, apart from what the client pays you FOR YOUR SERVICES.

(i) This rule applies to anyone acting on your behalf.
(ii) The rule prohibits you from holding client money or other assets yourself, or through any agent, third party or nominee.
(iii) A fixed FEE PAID IN ADVANCE is NOT client money for the purposes of this rule.

Question 6

Handling Client Money

Answer 6

(iv) 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.

Question 7

Associations

Answer 7

(a) 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.

(1) 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

Question 8

(b) You MUST NOT do anything as part of an association, which you are otherwise PROHIBITED from doing.

(i) 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.

Question 9

If you are part of an association on more than a one off basis you must …

Answer 9

NOTIFY THE BSB and provide such details as they may require.

Question 10

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.

Question 11

Making and Receiving Referrals

Question 12

Making and Receiving Referrals

(b) You should only make such a referral when…

Answer 12

it is in the client’s best interests.

Question 13

Making and Receiving Referrals

(c) If you have a material commercial interest in an organisation which is proposing to refer a matter to you:

Answer 13

(i) Paragraph 6(a) above applies.
In addition, you MUST
(ii) Make a clear agreement with the organisation about how conflicts of interest etc. will be dealt with.

Question 14

(d) “Material commercial interest” means

Answer 14

an interest which an objective observer would reasonably consider MIGHT POTENTIALLY INFLUENCE YOUR JUDGMENT.

Question 15

(e) If you refer a client to a 3rd party which is not regulated by the BSB or another legal regulator (e.g. the Law Society)

Answer 15

you must ensure that the client is not misled into believing that the 3rd party is subject to regulation.

Question 16

7 Outsourcing

(a) Where you outsource services to a 3rd party that are critical to the delivery of legal services supplied by you:

Answer 16

(i) Any outsourcing does NOT ALTER YOUR OBLIGATIONS to the client;

(ii) You remain RESPONSIBLE FOR COMPLIANCE with the Handbook;

(iii) You must ensure any outsourcing contractual agreement contains:

(1) CONFIDENTIALTY obligations similar to those placed on you by the Handbook

(2) Compliance with any obligations under the Code of Conduct relevant to the outsourcing;

(3) PERSONAL DATA is processed in accordance with your instructions and the Data Protection Act;

(4) Provision for the BSB or its agent to obtain information from, inspect the records (including electronic records) of, or enter the premises of such third party in relation to the outsourced activities or functions.

Question 17

Outsourcing

(b) This rule applies to outsourcing of clerking services.
(c) The rule does NOT apply to instructing a pupil or a devil to undertake work for you.

Question 17

(b) This rule applies to outsourcing of clerking services.
(c) The rule does NOT apply to instructing a pupil or a devil to undertake work for you.

Question 18

8 Handling Confidential Information

(a) The BSB’s Confidentiality Guidance focuses on the handling of confidential client information, including all communications with clients (which are of course privileged in any event) and confidential financial data belonging to members of chambers. The guidance states:

Answer 18

(i) Chambers must have APPROPRIATE SYSTEMS in place for looking after confidential information.

(ii) Barristers should seek to LIMIT THE RISK of casual or deliberate UNAUTHORISED ACCESS to confidential information.

Question 19

8 Handling Confidential Information

(iii) Arrangements put in place should cover:

(1) Handling and storage of confidential information (e.g. password protecting computers and not leaving papers where others can read them).

(2) Suitable protocols for distributing papers and sending faxes and emails.

Question 19

8 Handling Confidential Information

(iii) Arrangements put in place should cover:

(1) Handling and storage of confidential information (e.g. password protecting computers and not leaving papers where others can read them).

(2) Suitable protocols for distributing papers and sending faxes and emails.

Question 20

(iv) Particular care to be taken when using laptops, tablets, memory sticks etc. Devices should only be used to store info needed for IMMEDIATE BUSINESS PURPOSES. Information stored should be at least PASSWORD PROTECTED and preferably ENCRYPTED. Great care should be taken to ensure they are not lost or stolen.

(v) When no longer required, confidential material must be DISPOSED OF SECURELY.

(vi) Additional safeguards will be required when dealing with particularly sensitive information or for cases where counsel from the same chambers are instructed on opposing sides.