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Pupillage Ethics > Code of Conduct > Flashcards

Code of Conduct Flashcards

1
Q

Who do the core duties apply to?

A

all BSB regulated persons and unregistered barristers

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2
Q

Who do the conduct rules apply to?

A

All BSB regulated persons

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3
Q

Which conduct rules apply to unregistered barristers?

A

rule C3.5, C4, C8, C16, C19, C64-70.

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4
Q

When do the core duties apply?

A

when practising or providing legal services, CD5 and CD9 apply at all times.

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5
Q

When do the conduct rules apply?

A

when practising or providing legal services. Rules C8, C16, C64-70 apply at all times

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6
Q

When do the specific rules apply?

A

when practising or providing legal services

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7
Q

When do the core duties, conduct rules and specific rules apply to registered European Lawyers?

A

only when they are connected to professional work undertaken by them in that capacity in England and Wales

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8
Q

What is CD1?

A

You must observe your duty to the court in the administration of justice

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9
Q

What is CD2?

A

You must act in the best interests of each client

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10
Q

What is CD3?

A

You must act with honesty and integrity.

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11
Q

What is CD4?

A

You must maintain your independence

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12
Q

What is CD5?

A

You must not behave in a way which is likely to diminish the trust and confidence which the public place in you or the profession

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13
Q

What is CD6?

A

You must keep the affairs of each client confidential

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14
Q

What is CD7?

A

you must provide a competent standard of work and service to each client

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15
Q

What is CD8?

A

You must not discriminate unlawfully against any person

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16
Q

What is CD9?

A

you must be open and co-operative with your regulators

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17
Q

What is CD10?

A

you must take reasonable steps to manage your practice, or carry out your role within your practice, competently and in such a way as to achieve compliance with your legal and regulatory obligations.

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18
Q

Is there an order of preference of the CDs?

A

No except for CD1 overrides any other CD if they are inconsistent.

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19
Q

What are your obligations under CD2 subject to?

A

your obligations under CD3, CD4 and CD8

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20
Q

What does your obligations under CD10 include?

A

an obligation to take all reasonable steps to mitigate the effects of any breach of the legal and regulatory obligations once you become aware of them

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21
Q

What are the outcomes of the conduct rules?

A
  1. the court is able to rely on information provided to it by those conducting litigation and by advocates who appear before it
  2. the proper administration of justice is served
  3. the interests of clients are protected to the extent compatible with outcomes 1 and 2 and the CDs
  4. both those who appear before the court and clients understand clearly the extent of duties owed to the court by advocates and those conducting litigation and the circumstances in which duties owed to clients will be overridden by the duty to the court
  5. the public has confidence in the administration of justice and in those who serve it
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22
Q

What is your duty to the court?

A

to act with independence in the interests of justice

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23
Q

What does acting with independence in the interests of justice mean?

A
  1. you must not knowingly or recklessly mislead or attempt to mislead the court
  2. you must not abuse your role as an advocate
  3. you must take reasonable steps to avoid wasting the court’s time
  4. you must take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions
  5. you must ensure that your ability to act independently is not compromised
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24
Q

What is your duty to act in the best interests of your clients subject to?

A

your duty to the court

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25
Q

What does your duty to the court not require you to do?

A

breach your duty to keep client affairs confidential.

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26
Q

What does your duty to not mislead the court include?

A
  1. you must not:
    a. make submissions, representations or any other statement; or
    b. ask questions which suggests facts to witnesses

which you know, or are instructed, are untrue or misleading

  1. you must not call witnesses to give evidence, or put affidavits or witness statements to the court which you know, or are instructed to know, are untrue or misleading, unless you make clear to the court the true position as instructed to you
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27
Q

What does knowingly misleading the court include?

A

Being complicit in another person misleading the court, if you later realise you have misled the court and fail to correct the position

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28
Q

What does recklessly misleading the court include?

A

Being indifferent to the truth and not caring whether something is true or false

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29
Q

What is the duration of your duty to the court?

A

the duty to the court applies for the duration of the case

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30
Q

What must you draw to the attention of the court?

A

Any decision or provision which may be adverse to the interests of your client.

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31
Q

When is your duty to draw to the attention of the court adverse decisions or provisions particularly important.

A

where you are appearing against a litigant who is not legally represented

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32
Q

Can you still put forward your clients case if you do not believe it to be true.

A

Yes, this does not breach your duty to the court

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33
Q

What are you entitled to do if there is strong evidence against your client?

A

draw that evidence to their attention and indicate to them that a court might find it hard to accept. But if the witness maintains that the evidence is true, their witness statement should be recorded to that effect

34
Q

What are your duties if a client tells you that they have committed the offence for which they are charged?

A
  1. you are not able to disclose that information without your client’s consent; and
  2. you would not be misleading the court if, after having entered a plea of not guilty, in cross examination, you tested the reliability of the evidence of the prosecution witnesses and then dress the jury as to the fact that the prosecution had not succeeded in making them sure of your client’s guilt
35
Q

What ways can you set up a positive case to mislead the court?

A

suggesting to a prosecution witness/ calling your witness to show/submitting to the jury that that your client did not commit the crime; or
2. suggesting that someone else had done so; or
3. putting forward an alibi

36
Q

What should you do if there is a risk that the court will be misled unless you disclose confidential information?

A

you should ask the client for permission to disclose it to the court. IF your client refuses for you to make that disclosure you must cease to act and return your instructions

37
Q

What would you do if your client has pre cons which the prosecution are not aware of?

A

if there is no mandatory sentence that applies, then you do not need to say anything but you cannot advance a positive case of the Def being of good character, also if the Court asks you a direct question you would have to withdraw.

If a mandatory sentence applies and you do not have permission to disclose you would have to withdraw.

38
Q

What must you do if you become aware that your client has a document which should have been disclosed.

A

Ask for permission to disclose that document. if that is not granted, you cannot continue to act. You must not reveal the existence or contents of the document to the court

39
Q

What does your duty to not abuse your role as an advocate include?

A
  1. you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;
  2. you must not make a serious allegation against a witness whom who have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination
  3. you must not make a serious allegation against any person unless-
    a. you have reasonable grounds; and
    b. the allegation is relevant to your client’s case or the credibility of the witness; and
    c. where the allegation relates to a third party, you avoid naming them in open court.
  4. you must not put forward to the court a personal opinion on the facts or law, unless invited or required to do so by the Court or the law
40
Q

What are the outcomes for the behaving ethically conduct rules?

A
  1. those regulates by the BSB maintain standards of honesty, integrity and independence and are seen as doing so
  2. the proper administration of justice, access to justice and best interests of the client are served
  3. those regulated by the BSB do not discriminate unlawfully and take appropriate steps to prevent discrimination occurring in their practices
  4. those regulated by the BSB and clients understand the obligations of honesty, integrity and independence.
41
Q

What does your duty to act with honesty and integrity include?

A
  1. you must not knowingly or recklessly mislead or attempt to mislead anyone
  2. you must not draft any statement of case, witness statement or other document containing-
    a. any statement of fact or contention which is not supported by your client or instructions
    b. any contention which you do not consider to be properly arable
    c. any allegation of fraud, unless you have clear instructions and reasonably credible material that establishes an arguable case of fraud
    d. any statement or fact other than that which you think the witness would give in oral evidence.
  3. you must not encourage a witness to give evidence which is misleading or untruthful
  4. you must not rehearse, practise with or coach a witness in respect of their evidence
  5. unless you have the permission of the representative for the opposing side of the court or the Court authorises it, you must not communicate with any witness while they are giving evidence
  6. you must not make, or offer to make, payments to any witnesses that are contingent to the outcome of the case.
  7. you must only propose, or accept, fee arrangements which are legal
42
Q

What are the examples of how you may be seen to be breaching your independence?

A
  1. offering, promising or giving:
    a. any commission or referral fee;
    b. a gift (apart from items of modest value)
    to any client, professional client or other intermediary; or
  2. lending money to any such client or other intermediary; or
  3. accepting any money from any client, professional client or intermediary, unless it is a payment for your professional services or reimbursement of expenses or disbursements made on behalf of the client
43
Q

What should you do when you receive a gift?

A

Consider whether the circumstances and size of the gift would lead other to believe that your independence had been compromised, if this is the case, then you should refuse to accept the gift.

44
Q

What is the situation with regard to giving or receiving entertainment?

A

the giving or receivement of entertainment at a disproportionate level may also give rise to people thinking your independence has been compromised

45
Q

What ethical obligations apply to media comment?

A
  1. client’s best interests
  2. independence
  3. trust and confidence
  4. confidentiality
46
Q

What conduct is likely to be seen as a breach of CD3 and CD5?

A
  1. breaches rC8
  2. breaches of rC10
  3. criminal conduct, other than minor criminal offences
  4. seriously offensive or discreditable conduct towards third parties
  5. dishonesty
  6. unlawful victimisation or harassment
  7. abuse of your professional position
47
Q

Is referring to your title as barrister where it is irrelevant an abuse of your professional position?

A

yes.

48
Q

What conduct is not likely to be treated as a breach of rC8 or rC9 or CD3 or CD5?

A
  1. minor criminal offences
  2. your conduct in your private or personal life, unless this involves:
    a. abuse of your professional position, or
    b. committing a criminal offence, other than a minor criminal offence.
49
Q

What is a minor criminal offence?

A
  1. an offence committed in the UK which is a fixed-penalty offence under the RTOA 1988; or
  2. an offence committed in the UK or abroad which is dealt with by a procedure similar to a fixed-penalty offence; or
  3. an offence whose main ingredient is the unlawful parking of a motor vehicle.
50
Q

What is the rule on referral fees?

A

you must not pay or receive referral fees

51
Q

what is rC10?

A

you must not pay or receive referral fees

52
Q

what core duties is the making or receiving of commercial payments inconsistent with?

A

CD2, CD3, CD4 and/or CD5

53
Q

What can constitute a bribe?

A

a referral fee to which the client has not consented

54
Q

What does rule rC10 not prohibit expenses for?

A
  1. clerking and administrative services
  2. membership subscriptions to ADR bodies that appoint a person to provide mediation services; or
  3. advertising and publicity, which are payable whether or not any work is referred.
55
Q

What is the rule as to undertakings?

A

you must with an agreed timescale or within a reasonable period of time comply with any undertaking you give in the course of conducting litigation

56
Q

What should you ensure your insurance covers?

A

you in respect of any liability incurred in giving an undertaking

57
Q

What is the rule on discrimination?

A

you must not discriminate unlawfully against, victimise or harasss any other person on the grounds of race, colour, nationality, citizenship, sex or civil partnership or pregnancy and maternity.

58
Q

What must you do with foreign work?

A

you must comply with any applicable rule of conduct prescribed by the law or by any national or local Bar of:

  1. the place where the work is to be performed; and
  2. the place where any proceedings or matters to which the work relates are taking place or contemplated
59
Q

What are the outcomes of the rules for you and your client?

A
  1. client receives a competent standard of work and service
  2. client’s best interests are protected and promoted by those acting for them
  3. BSB authorised persons do to accept instructions from clients where there is a conflict between their own interests and the clients
  4. clients know what to expect and understand the advice they are given.
  5. care is given to ensure that the interests of vulnerable clients are taken into account and their needs are met
  6. clients. have confidence in those who are instructed to act on their behalf
  7. instructions are not accepted, refused, or returned in circumstances which adversely affect the administration of justice.
  8. clients are adequately informed as to the terms one which their work is to be done.
  9. clients understand how to bring a complaint and complaints are dealt with promptly, fairly, openly and effectively.
  10. clients understand who is responsible for work done for them.
60
Q

what obligations are included in your duty to act in the best interests of each client and provide them with a competent standard of work?

A
  1. you must promote fearlessly and by all proper lawful means, the client’s best interests
  2. you must do so without regard to your own interests or any consequences to you
  3. you must do so without regard to the consequences to any other person
  4. you must not permit your professional client, employer or any other person to limit your discretion asa to how the client’s best interests are best served.
  5. you must protect the confidentiality of each client’s affairs, except for such disclosures that are permitted by law or to which your client gives informed consent.
61
Q

What is your duty to act in the best interests of the client subject to?

A

your duty to the court, to act with honesty and integrity and to maintain independence.

62
Q

Which client must you act in the best interests of?

A

your client, not the professional client or any intermediary.

63
Q

What does a competent standard of work and service include?

A
  1. treating each client with courtesy and consideration; and
  2. seeking to advise your client, in terms they can understand;
  3. taking all reasonable steps to avoid incurring unnecessary expense; and
  4. reading your instructions promptly. This may be important if there is a time limit or limitation period.
64
Q

What must you continue to do to provide a competent standard of work?

A

Continue to keep your professional knowledge and skills up to date and take part in CPD.

65
Q

What should you ensure that client’s understand when it comes to their cases?

A

that they understand the process and what to expect from it and you. you should also try to avoid any unnecessary distress to your client

66
Q

What is your duty of confidentiality subject to?

A

an exception if disclosure is required or permitted by law.

67
Q

What are the examples where disclosure is required by law?

A

you may be obliged to disclose certain matters by the Proceeds of Crime Act 2002.

68
Q

Does the confidentiality rule apply to pupils or individuals devilling work for a self-employed barrister?

A

Yes

69
Q

What must you consider with regard to representation as per your duty to act in the best interests of a client?

A

whether the client’s best interests are served by different legal representation and if so to advise on that.

70
Q

What may you have to advise as to legal representation?

A

that the client should :
1. get a different advocate/legal representative, whether more or less junior
2. more than one advocate or legal rep
3. fewer advocates or legal representatives than have been instructed; or
4. in the case where you acting through a professional client, different solicitors

71
Q

What must you do if you feel that your professional client or solicitor has been neglectful.

A

you must advise your lay client of this

72
Q

What must you inform your client or professional client to protect the client’s interests?

A
  1. if you cannot carry out the instructions within the time requested, or within a reasonable time after receipt
  2. there is an appreciable risk that you may not be able to undertake the instructions
73
Q

What must you not mislead or cause client’s to be misled about?

A
  1. the nature and scope fo the legal services which you are offering or agreeing to supply;
  2. the terms on which the legal services will be supplied, who will carry out the work and the basis of charging;
  3. who is legally responsible for the provision of the services
  4. whether you are entitled to supply those services and the extent to which you are regulated when providing those services and by whom; or
  5. the extent to which you are covered by insurance against claims for professional negligence
74
Q

When are the best interests of the clients and public confidence in the profession undermined?

A

where there is a lack of clarity as to whether services are regulated, who is supplying them, on what terms, and what redress clients have and against whom if things go wrong

75
Q

In what circumstances can premises mislead clients?

A

if self-employed barristers share premises with solicitors without making it clear that they remain separate and independent from one another’s work

76
Q

If you carry out public access work but are not authorised to conduct litigation, when would you be misleading clients?

A

if you caused or permitted your client to be misled into believing that you are entitled to conduct litigation on behalf of your client.

77
Q

Would you be breaching your duties if you charged at your hourly rate for work done by your pupil

A

Yes

78
Q

As an unregistered barrister how would you be misleading your client?

A

if you led them to believe that you were providing legal services to them as a barrister or that you are subject to the same regulation as a practising barrister

79
Q

If you’re an unregistered barrister can clients seek remedies from the BSB or Legal Ombudsman?

A

No

80
Q

What should pupils not do, to make sure they don’t mislead clients?

A

Hold themselves out as a member of chambers or permit their name to appear as such. You should ensure the client understands your status.

81
Q

If you are a BSB authorised individual, who is responsible for your work?

A

you are personally responsible, whether you are self-employed or acting in an employed capacity.

Pupillage Ethics (24 decks)

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