Code of Conduct: You and your client

Question 1

Definition of client

Answer 1

The person for whom you act, and where the context permits, includes prospective and former clients.

• Includes incorporated or unincorporated bodies e.g. charities or companies
• Instructing solicitor is your client, but you act for the lay client rather than your instructing solicitor

Question 2

Outcome C10

Answer 2

• Client must receive a competent standard of work and service
• This covers work and service. If you draft an excellent statement of case but fail to explain it to the client in a way they can understand, the outcome is not achieved.

Question 3

Outcome C13: clients know what to expect and understand the advice they are given

Answer 3

Examples of what a client needs to be told:

• Likely prospects of success
• Options available to them and the risks and benefits of each one
• What will happen in court
• What will happen if they are called to give evidence

Question 4

Outcome 14: Care is given to ensure that the needs of vulnerable clients are taken into account, and their needs are met.

Answer 4

Those who:

• suffer from a mental health disorder
• are in the care system
• don’t understand or speak English well
• are children or elderly
• have physical or cognitive difficulties making it hard to follow legal proceedings

Question 5

Outcome 15

Answer 5

Clients have confidence in those who are instructed to act on their behalf.

Question 6

Outcomes 16 and 17

Answer 6

• Instructions are not accepted, refused or returned in circumstances which adversely affect the administration of justice, access to justice or the best interests of the client.
• Clients and barristers are clear about the circumstances in which instructions may be accepted, refused or returned.
• Every time you are instructed to represent a client, you need to consider whether you can properly accept the instructions e.g. is there a conflict of interest between the new client and an existing client
• If you have to return instructions, you must consider the impact on your client and the administration of justice: can your client find another barrister in time? Will a court hearing have to be delayed?

Question 7

Outcome 19

Answer 7

• Clients understand how to bring a complaint, and complaints are dealt with promptly, fairly, openly and effectively.
• The first port of call for all complaints will be the chambers’ complaints policy, which must be displayed on its website.

Question 8

Outcome 20 - Clients understand who is responsible for work done for them.

Answer 8

The system of pupillage and devilling (where a senior barrister delegates their own work to a junior barrister or pupil) can lead to a situation, unless the true position is made clear, where a client thinks they are paying for a senior barrister’s work, but they are actually getting the work of less experienced counsel. This is unfair and undermines the confidence a client should be able to place in their barrister.

Question 9

CD2 - ‘each client’

Answer 9

You may only accept instructions to act for more than one client if you are able to act in the best interests of each client as if they were your only client. Each client is entitled to the same standard of work and service from you, and you must not promote one client’s interests to the detriment of any other client.

Question 10

CD2 - ‘without regard to the consequences to any other person’

Answer 10

As a barrister you are answerable not only to your lay client but also to your instructing solicitor. Your duty to your lay client is more important than your obligation to any other individual.

Question 11

No limit to your personal discretion

Answer 11

• The defining feature of a barrister’s role is that they are personally responsible for every decision they make about how the client’s interests can best be served.
• You must not permit your professional client, employer, or any other person to limit your discretion as to how the interests of the client can be best be served.

Question 12

Ensuring a competent standard of work and service

Answer 12

• Treating clients with courtesy and consideration
• Advising your client in terms they can understand
• Taking all reasonable steps to avoid unnecessary expense
• Reading your instructions promptly
• You must make sure your professional knowledge is up to date by participating in professional development and training activities, and complying with any specific training requirements of the BSB for undertaking certain types of work (e.g. training to attend a police station interview and for public access work)

Question 13

Supporting your client

Answer 13

You should do what you reasonably can to make sure your client understands the process and what to expect. You should try to avoid any unnecessary distress to your client, especially when your client is vulnerable.

Question 14

Client confidentiality

Answer 14

There are only two situations in which disclosing your client’s affairs is permitted:
(1) The disclosure is required by law (e.g. money laundering legislation); or
(2) Your client gives informed consent to the disclosure.
Confidentiality duty applies to you even if you are a pupil, or devilling work for a self-employed barrister.

Question 15

Client’s interests are not always paramount

Answer 15

Your duty to act in the best interests of your client (CD2) is subject to your duty to the court (CD1), duty to act with honesty and integrity (CD3) and duty to maintain independence (CD4). Your overriding duty is always to the court in the administration of justice (CD1).

Question 16

Duty to the court vs duty to the client

Answer 16

Your duty to the court does not require you to disclose confidential information you have obtained in the course of your instructions, and which your client has not authorised you to disclose to the court. However, you must never mislead the court.

Question 17

Legal professional privilege

Answer 17

• In normal circumstances confidential information will be privileged and not disclosed to the court.
• Two main categories of legal professional privilege which protects confidential client information from third parties, including the court:
  (1) Legal advice privilege: protects confidential communications between lawyers and their clients for the purpose of seeking or giving legal advice.
  (2) Litigation privilege: protects confidential communications between lawyers and their clients, or the lawyer or client and a third party, which comes into existence for the dominant purpose of being used in connection with actual or pending litigation.

Question 18

Disclosure required by law

Answer 18

Legal professional privilege does not protect communications made ‘in furtherance of a crime.’

Question 19

Disclosure by client consent

Answer 19

You can disclose confidential information to third parties if your client gives informed consent i.e. you have clearly explained the consequences of disclosure.

Examples of when you might want to ask for a client’s consent:

(a) In criminal proceedings: if you become aware that your client has previous convictions that the court and prosecution don’t know about. If you are representing a defendant who has privately admitted their guilt.
(b) In civil proceedings: if your client tells you their WS is untrue and they want to change their evidence.

In each of the above situations, you must not mislead the court. If your client refuses consent, you must cease to act and return instructions.

Question 20

Disclosure process - disclosure of confidential information (if not required by law)

Answer 20

(a) Is the information confidential?
(b) Would the court be misled if not given the information?
(c) Ask client for permission to disclose, explaining the consequences either way.
(d) If client gives permission, disclose the information.
(e) If client does not give permission, do not disclose. Explain why you have to cease to act and return your instructions.

Question 21

Data protection

Answer 21

• All self-employed barristers are ‘data controllers’ for the purposes of the Data Protection Act 2018 (DPA)
• Pupils in their first six and in their second six to the extent they are still working on cases in their supervisor’s names are ‘data processors’ rather than ‘data controllers’ under the DPA.
• The GDPR applies only to the processing of personal data, that is information relating to natural persons (i.e. not a company or other association) who (a) can be identified or who are identifiable, from the information in question or (b) can be directly identified from that information in combination with other information.
• Some but not all confidential client information will also be personal data under the Act.

Question 22

Data security essentials

Answer 22

(a) Comply with chambers’ data protection policy
(b) Password protect your laptop and any other devices you use for work
(c) Encrypt the devices you use for work on your laptop, and any other devices
(d) Encrypt emails you send in relation to client matters, as well as any attached documents
(e) Endeavour not to leave your papers on public transport
(f) Avoid taking your papers out of chambers other than to court, or straight home

Question 23

Considering alternative representation

Answer 23

• Occasions will arise in practice where you think it would be in the client’s best interests to instruct a different, or additional, barrister or a different solicitor.
• You are under a duty in respect of each client to consider whether that would be the case, and if so, advise the client to that effect.

Question 24

Alternative representation - gC49.1

Answer 24

• Sets out the options you should consider, and may advise the client about.
• If having accepted instructions from a client you realise that you don’t have sufficient experience in the subject matter to provide a competent standard of work, you should advise your client to instruct an advocate with different experience from yours or who is more senior.
• In contrast, an experience barrister may be too senior and so disproportionately expensive for a very straightforward case. They should advise a client that a more junior barrister would be appropriate, and it is then entirely up to the client what they decide.

Question 25

Additional barrister or less barristers

Answer 25

• As a junior barrister, you will be instructed in your own name in cases that go to appeal. You will be familiar with the case and client, and will not want to lose the appeal brief. However, you may have concerns about your level of experience.
• Depending on the complexity of issues and importance of the case, you may think the client’s best interests would be best served at appeal stage by instructing a senior barrister (‘leader’) in the appeal, in addition to you.
• Only advise your client to instruct an additional advocate if this is in their best interests; you are under a duty to avoid unnecessary costs.
• On the other hand, you may think your client has instructed too many advocates. It is easier for a senior barrister to advise the client that they don’t need a junior, than the other way round. Nevertheless, both are under a duty to consider the client’s best interests.

Question 26

Client’s best interests not being served by the solicitor

Answer 26

• This may fall short of negligence but a lack of experience or available time.
• The client’s interests are paramount. There will be other factors to also consider, such as whether the client’s interests would be prejudiced by a move to a different solicitor. This may not be problematic if proceedings are at an early stage; it is not something to be sensibly contemplated a few days before trial, unless the situation is extreme.

Question 27

Negligence

Answer 27

• If you think that anyone acting on behalf of your client has been negligent, you should ‘ensure that your client is advised of this’
• e.g. another barrister, the current solicitor, a previous solicitor, an intermediary, anyone other than a solicitor falling within the meaning of ‘professional client.’
• The wording of the rule suggests you are not under a personal duty to advise; you must simply ensure that the client is advised e.g. you might want to advise the current solicitor in the case that a barrister previously instructed has been negligent.

Question 28

Not misleading your client (rC19)

Answer 28

• You must not mislead or cause or permit to be misled, any person to whom you supply, or offer to supply, legal services, about the nature and scope of the legal services which you are offering or agreeing to supply.
• This rule may potentially be infringed in a broad variety of situations, and you must consider how matters will appear to the client.

Question 29

Misleading client - nature and scope of legal services

Answer 29

• Your client should be left in no doubt as to what legal services you can provide.
• e.g. barristers are not permitted to conduct litigation i.e. issue legal proceedings without separate certification from the BSB. Your client should not be given the impression that you can do this, if you cannot.

Question 30

Misleading client - terms of work

Answer 30

Your client should not be misled about:

• The terms on which you will provide legal services (e.g. the work agreed, the cost, the timeframe)
• Who will carry out the work (e.g. you or another barrister)
• The basis of charging (e.g. fixed fee for entire case, fee for each separate piece of work, etc)

Question 31

Misleading client - Legal responsibility for the provision of services

Answer 31

Possible areas of confusion are:

• Who is legally responsible to the client for the solicitor’s conduct of the case e.g. initial advice to the client and conducting litigation - the solicitor is responsible.
• Who is legally responsible for the provision of any legal services which the barrister has agreed to provide e.g. advocacy at trial - the barrister
• Who is legally responsible to the client for administrative services provided by the barristers’ chambers e.g. listing court dates, filing trial bundles at court - the barrister
• Who is legally responsible to the client for the work of the barristers’ pupil? - the barrister

Question 32

Pupils - holding out as a tenant

Answer 32

There is a specific prohibition in the Guidance to rule C19 that if you are a pupil you should not hold yourself out as a member of chambers or permit your name to appear as such, e.g. on the chambers’ website. You should ensure your client understands your status.

Question 33

Entitlement to supply services

Answer 33

• Your client must not be misled about your entitlement to supply the legal services you are offering.
• You must be authorised to practice i.e. have your own practising certificate and insurance in place before carrying out any ‘reserved legal activity’ e.g. the exercise of a right of audience.
• There are certain types of work e.g. direct public access work for which you need separate accreditation by the BSB. Your client must not be misled as to your entitlement to conduct this kind of work.

Question 34

Regulation

Answer 34

• Your client must not be misled about the extent to which you are regulated when providing legal services, and by whom.
• As a barrister, you are regulated by the Bar Standards Board

Question 35

Insurance

Answer 35

• Your client must not be misled about the extent to which you are covered by insurance against claims for professional negligence.
• You must not allow your client to be misled about:
  (a) The fact you are covered by professional indemnity insurance (BMIF) if you are not a pupil
  (b) The financial limit of your insurance cover
  (c) If you are a pupil, the fact that you are covered by your supervisor’s insurance.

Question 36

rC20 - Personal responsibility

Answer 36

• Barrister are personally responsible for every aspect of the work they do for clients, and for their own conduct.
• You can and should seek guidance from more senior and experienced counsel, but once you have your provisional practising certificate (usually at the start of your second six), you are a BSB authorised individual and no one else is responsible if your decision turns out to be wrong.

Question 37

rC20 and BSB authorised individuals

Answer 37

• rC20 applies to BSB authorised individuals.
• The definition is ‘all individuals authorised by the Bar Standards Board to carry on reserved legal activities’, including:
  (a) practising barristers;
  (b) pupils with a provisional practising certificate;
  (c) registered European lawyers

Question 38

First six pupils

Answer 38

• First six pupils are not personally responsible for their work, as they are not BSB authorised individuals
• Their supervisor is under a duty to the client to be clear about who is going to be doing what written work in the case. They should also check the work of the pupil before providing it to the client.

Question 39

Noting briefs

Answer 39

• Noting brief: instructions from a client to attend court with your supervisor or other more senior barrister, to take a note of proceedings.
• You may accept a noting brief before you obtain a provisional practising certificate, if you have the permission of your pupil supervisor or head of chambers.

Question 40

Second six pupils

Answer 40

• Second six pupils are allowed to accept instructions in their own name, provided they have a provisional practising certificate.
• To obtain one, a barrister must:
  (a) have successfully completed a period of pupillage satisfactory to the BSB;
  (b) pay such fee or fees as may be prescribed.

Question 41

Provisional practising certificate

Answer 41

If you are a pupil with a provisional practising certificate, you may only supply legal services to the public or exercise any right which you have by reason of being a barrister, if you have the permission of your pupil supervisor or head of chambers or HOLP.

Question 42

Employed barristers

Answer 42

• The requirement to take personal responsibility for your work and conduct applies to employed, as well as self-employed, barristers.
• e.g. you must use your own professional judgment in relation to those matters on which you are instructed and be able to justify your decisions and actions. You must do this notwithstanding the views of your client, professional client, employer or any other person.

Question 43

Delegating tasks

Answer 43

The delegation of tasks to pupils is an essential ingredient of barristers’ training. However, you remain personally responsible for the work produced. As a BSB authorised individual you may only delegate:

(a) Discrete tasks e.g. research or drafting;
(b) which the other person is well equipped to provide.

Question 44

Responsibility for the work of others

Answer 44

As a BSB authorised individual, you are responsible for the service provided by all those who represent you in your dealings with your client, including your clerks or any other employees or agents.

Chambers are unincorporated associations of self-employed barristers. If a clerk in chambers makes an error which results in a loss to the client, the client would have no redress against chambers. The client would have redress against the barrister.