Code of Conduct Instructions

Question 1

601: What is the cab-rank rule?

Answer 1

A barrister who supplies advocacy services must not withhold those services:

(a) on the ground that the nature of the case is objectionable to him or to any section of the public;
(b) on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him or to any section of the public;
(c) on any ground relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question (for example, on the ground that such support will be available as part of the Community Legal Service or Criminal Defence Service).

Question 2

602: When must a barrister comply with the cab-rank rule and what does this entail doing?

Answer 2

A self-employed barrister must comply with the ‘Cab-rank rule’ and accordingly except only as otherwise provided in paragraphs 603 604 605 and 606 he must in any field in which he professes to practise in relation to work appropriate to his experience and seniority and irrespective of whether his client is paying privately or is publicly funded:

(a) accept any brief to appear before a Court in which he professes to practise;
(b) accept any instructions;
(c) act for any person on whose behalf he is instructed; and do so irrespective of
(i) the party on whose behalf he is instructed
(ii) the nature of the case and
(iii) any belief or opinion which he may have formed as to the character reputation cause conduct guilt or innocence of that person.

Question 3

603(a): When must a barrister not accept instructions regarding experience?

Answer 3

A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
(a) if he lacks sufficient experience or competence to handle the matter;

Question 4

603(b): When must a barrister not accept instructions regarding commitments?

Answer 4

A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
(b) if having regard to his other professional commitments he will be unable to do or will not have adequate time and opportunity to prepare that which he is required to do;

Question 5

603(c): When must a barrister not accept instructions regarding his discretion/conduct?

Answer 5

A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
(c) if the instructions seek to limit the ordinary authority or discretion of a barrister in the conduct of proceedings in Court or to require a barrister to act otherwise than in conformity with law or with the provisions of this Code;

Question 6

603(d): When must a barrister not accept instructions regarding independence?

Answer 6

A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
(d) if the matter is one in which he has reason to believe that he is likely to be a witness or in which whether by reason of any connection with the client or with the Court or a member of it or otherwise it will be difficult for him to maintain professional independence or the administration of justice might be or appear to be prejudiced;

Question 7

603(e): When must a barrister not accept instructions regarding interests of parties?

Answer 7

A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
(e) if there is or appears to be a conflict or risk of conflict either between the interests of the barrister and some other person or between the interests of any one or more clients (unless all relevant persons consent to the barrister accepting the instructions);

Question 8

603(f): When must a barrister not accept instructions regarding confidentiality?

Answer 8

A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
(f) if there is a significant risk that information confidential to another client or former client might be communicated to or used for the benefit of anyone other than that client or former client without their consent;

Question 9

603(g): When must a self-employed barrister not accept instructions from a (firm of) solicitor(s)?

Answer 9

A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
(g) if he is a self-employed barrister where the instructions are delivered by a solicitor or firm of solicitors in respect of whom a Withdrawal of Credit Direction has been issued by the Chairman of the Bar pursuant to the Terms of Work on which Barristers Offer their Services to Solicitors and the Withdrawal of Credit Scheme 1988 as amended and in force from time to time unless his fees are to be paid directly by the Legal Services Commission or the instructions are accompanied by payment of an agreed fee or the barrister agrees in advance to accept no fee for such work or has obtained the consent of the Chairman of the Bar.

Question 10

603(h): When must a barrister not accept instructions regarding a lay client without a solicitor?

Answer 10

A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:
(h) If the barrister is instructed by or on behalf of a lay client who has not also instructed a solicitor or other professional client, and if the barrister is satisfied that it is in the interests of the client or in the interests of justice for the lay client to instruct a solicitor or other professional client.

Question 11

604(a): When is a self-employed barrister not obliged to accept instructions in relation to timing in the year?

Answer 11

Subject to paragraph 601 a self-employed barrister is not obliged to accept instructions:
(a) requiring him to do anything other than during the course of his ordinary working year;

Question 12

604(b): When is a self-employed barrister not obliged to accept instructions in relation to fees?

Answer 12

Subject to paragraph 601 a self-employed barrister is not obliged to accept instructions:
(b) other than at a fee which is proper having regard to:
(i) the complexity length and difficulty of the case;
(ii) his ability experience and seniority; and
(iii) the expenses which he will incur;
and any instructions in a matter funded by the LSC as part of the CLS or the CDS for which the amount or rate of the barrister’s remuneration is prescribed by regulation or subject to assessment shall for this purpose unless the Bar Council or the Bar in general meeting otherwise determines be deemed to be at a proper professional fee;

Question 13

604(c): When is a self-employed barrister not obliged to accept instructions in relation to CFAs?

Answer 13

Subject to paragraph 601 a self-employed barrister is not obliged to accept instructions:
(c) to do any work under a conditional fee agreement;

Question 14

604(d): When is a self-employed barrister not obliged to accept instructions in relation to fee agreement and payment?

Answer 14

Subject to paragraph 601 a self-employed barrister is not obliged to accept instructions:

(d) save in a matter funded by the Legal Services Commission as part of the Community Legal Service or the Criminal Defence Service:
(i) unless and until his fees are agreed;
(ii) if having required his fees to be paid before he accepts the instructions those fees are not paid;

Question 15

604(e) and (f): When is a self-employed barrister not obliged to accept instructions in relation to non-professional clients or the lay client is also the professional client?

Answer 15

Subject to paragraph 601 a self-employed barrister is not obliged to accept instructions:

(e) from anyone other than a professional client who accepts liability for the barrister’s fees;
(f) in a matter where the lay client is also the professional client;

Question 16

604(g): When is a self-employed barrister not obliged to accept instructions in relation to contract terms?

Answer 16

Subject to paragraph 601 a self-employed barrister is not obliged to accept instructions:
(g) to do any work under the Contractual Terms on which Barristers offer their Services to Solicitors 2001 as amended and in force from time to time or on any other contractual terms.

Question 17

604(h): When is a self-employed barrister not obliged to accept instructions in relation to the level of professional indemnity insurance required?

Answer 17

Subject to paragraph 601 a self-employed barrister is not obliged to accept instructions:
(h) where the potential for professional negligence in respect of the case could exceed the level of professional indemnity insurance which is reasonably available and likely to be available in the market for him to accept.

Question 18

605: When is a self-employed QC not obliged to accept instructions?

Answer 18

A self-employed Queen’s Counsel is not obliged to accept instructions:

(a) to settle alone any document of a kind generally settled only by or in conjunction with a junior;
(b) to act without a junior if he considers that the interests of the lay client require that a junior should also be instructed.

Question 19

606.1: What must a barrister consider when being instructed or determining continuation of instructions in regards to the client?

Answer 19

A barrister must in the case of all instructions consider whether consistently with the proper and efficient administration of justice and having regard to:
(a) the circumstances (including in particular the gravity complexity and likely cost) of the case;
(b) the nature of his practice;
(c) his ability experience and seniority; and
(d) his relationship with the client;
the best interests of the client would be served by instructing or continuing to instruct him in that matter.

Question 20

606.2: What must a barrister consider when instructed with (an)other advocate(s)?

Answer 20

Where a barrister is instructed in any matter with another advocate or advocates the barrister must in particular consider whether it would be in the best interests of the client to instruct only one advocate or fewer advocates.

Question 21

606.3: What should a barrister consider when instructed directly by the lay client or by an intermediary who is not a solicitor?

Answer 21

A barrister who in any matter is instructed either directly by the lay client or by an intermediary who is not a solicitor or other authorised litigator should consider whether it would be in the interests of the lay client or the interests of justice to instruct a solicitor or other authorised litigator or other appropriate intermediary either together with or in place of the barrister.

Question 22

606.4: What must a barrister consider if the case involves several parties?

Answer 22

In cases involving several parties, a barrister must on receipt of instructions and further in the event of any change of circumstances consider whether, having regard to all the circumstances including any actual or potential conflict of interest, any client ought to be separately represented or advised or whether it would be in the best interests of any client to be jointly represented or advised with another party.

Question 23

607: What should the barrister do if he considers it would be better that the client have different representation?

Answer 23

If at any time in any matter a barrister considers that it would be in the best interests of any client to have different representation, he must immediately so advise the client.

Question 24

608(a): When must a self-employed barrister cease to act/return instructions regarding professional embarrassment?

Answer 24

A barrister must cease to act and if he is a self-employed barrister must return any instructions:
(a) if continuing to act would cause him to be professionally embarrassed within the meaning of paragraph 603 provided that if he would be professionally embarrassed only because it appears to him that he is likely to be a witness on a material question of fact he may retire or withdraw only if he can do so without jeopardising the client’s interests;

Question 25

608(b): When must a self-employed barrister cease to act/return instructions if he accepted instructions on behalf of more than one client?

Answer 25

A barrister must cease to act and if he is a self-employed barrister must return any instructions:
(b) if having accepted instructions on behalf of more than one client there is or appears to be:
(i) a conflict or risk of conflict between the interests of any one or more of such clients; or
(ii) risk of a breach of confidence;
and the clients do not all consent to him continuing to act;

Question 26

608(c): When must a self-employed barrister cease to act/return instructions if funded by the LSC?

Answer 26

A barrister must cease to act and if he is a self-employed barrister must return any instructions:
(c) if in any case funded by the Legal Services Commission it has become apparent to him that such funding has been wrongly obtained by false or inaccurate information and action to remedy the situation is not immediately taken by the client;

Question 27

608(d) and (e): When must a self-employed barrister cease to act/return instructions in relation to disclosure?

Answer 27

A barrister must cease to act and if he is a self-employed barrister must return any instructions:

(d) if the client refuses to authorise him to make some disclosure to the Court which his duty to the Court requires him to make;
(e) if having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it;

Question 28

608(f): When must a self-employed barrister cease to act/return instructions if he comes into possession of another party’s document other than through normal channels?

Answer 28

A barrister must cease to act and if he is a self-employed barrister must return any instructions:
(f) if having come into possession of a document belonging to another party by some means other than the normal and proper channels and having read it before he realises that it ought to have been returned unread to the person entitled to possession of it he would thereby be embarrassed in the discharge of his duties by his knowledge of the contents of the document provided that he may retire or withdraw only if he can do so without jeopardising the client’s interests.

Question 29

609: When may a barrister withdraw from a case?

Answer 29

Subject to paragraph 610 a barrister may withdraw from a case where he is satisfied that:

(a) his instructions have been withdrawn;
(b) his professional conduct is being impugned;
(c) advice which he has given in accordance with paragraph 607 or 703 has not been heeded; or
(d) there is some other substantial reason for so doing.

Question 30

610: What limitations on returning instructions are there?

Answer 30

A barrister must not:

(a) cease to act or return instructions without having first explained to the client his reasons for doing so;
(b) return instructions to another barrister without the consent of the client;
(c) return a brief which he has accepted and for which a fixed date has been obtained or (except with the consent of the lay client and where appropriate the Court) break any other engagement to supply legal services in the course of his practice so as to enable him to attend or fulfil an engagement (including a social or non-professional engagement) of any other kind;
(d) except as provided in paragraph 608 return any instructions or withdraw from a case in such a way or in such circumstances that the client may be unable to find other legal assistance in time to prevent prejudice being suffered by the client.