Ethics Flashcards
1
Q
Unregistered barrister definition
A
An individual who does not hold a practising certificate but has been called to the Bar and has not ceased being a member of the Bar
2
Q
Barrister definition
A
Practicing barristers, pupils, and unregistered barristers
3
Q
BSB regulated person definition
A
Practicing barristers, registered European lawyers, BSB entities and employees/managers of the above
4
Q
Legal services definition
A
Giving legal advice; representation; drafting or settling any statement of case, witness statement, affidavit, or other legal document
5
Q
What does not fall under legal services?
A
Sitting as a judge, arbitrator, or mediator; lecturing in law or contributing to books/articles/reports; examining publications for libel/breach of copyright/contempt of court etc; communicating to the press; giving free legal advice to friends/family/charitable institutions; ENE, expert determination and adjudication.
6
Q
CD1
A
You must observe your duty to the court in the administration of justice
7
Q
CD2
A
You must act in the best interests of each client
8
Q
CD3
A
You must act with honesty and with integrity
9
Q
CD4
A
You must maintain your independence
10
Q
CD5
A
You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession
11
Q
CD6
A
You must keep the affairs of each client confidential
12
Q
CD7
A
You must provide a competent standard of work and service to each client
13
Q
CD8
A
You must not discriminate unlawfully against any person
14
Q
CD9
A
You must be open and co-operative with your regulators
15
Q
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
16
Q
How must you promote your client’s interests?
A
Fearlessly and by all proper and lawful means
17
Q
When promoting your client’s interests, whose interests must you not have regard to?
A
Your own, as well as any consequences to you or any other person
18
Q
Can you limit your discretion as to how your client’s interests are best served?
A
No - this cannot be limited by your professional client, employer, or any other person
19
Q
When can you breach client confidentiality?
A
Where disclosures are required or permitted by law, or where your client gives informed consent
20
Q
What must you not draft a statement of case, witness statement, or affidavit containing?
A
A contention not supported by your client or instructions; a contention that is not properly arguable; an allegation of fraud without clear instructions and reasonably credible material; (when drafting a witness statement or affidavit) a statement of fact which you do not reasonably believe the witness would give orally
21
Q
What specific financial actions can be seen as compromising your independence?
A
Offering/promising/giving a commission, referral fee, or gift; lend money; or accepting money from a client, professional client, or intermediary
22
Q
Can you ever give gifts to a client, professional client, or intemediary?
A
Yes, if they are of modest value
23
Q
What duties is your duty to act in your client’s best interests subject to?
A
Your duty to the court (CD1) to act with honesty and integrity (CD3) and to act with independence (CD4)
24
Q
What do you do if you believe you wont be able to carry out your instructions within the time requested or at all?
A
Inform your professional client as far as reasonably possible in sufficient time to enable appropriate steps to be taken to protect the client’s interests
25
If you supply legal services, what must you not mislead the receiver about?
The nature and scope of the legal services; the terms on which the services will be provided; who is legally responsible for the provision of the services; whether you are entitled to provide those services; the extent to which you are regulated and insured.
26
What is the nature of a barrister's personal responsibility?
They are responsible for their own work and conduct, must use their professional judgment, and must be able to justify their decisions and actions.
27
What conflicts of interest mean that you must not accept instructions?
Conflict between your own personal interests and those of the prospective client; and conflict between the interests of the prospective client and your former or existing clients (unless both parties give informed consent)
28
What happens if information confidential to a former or existing client is relevant to another client's case?
You must consider whether there is a real risk that you could not act in the best interests of the other client the former or existing client did not give informed consent to disclosure of that information
29
What should you do if you don't have enough time or experience to deal with a case?
Do not accept the instructions unless (in the case of time) it would nevertheless be in the best interests of the client for you to represent them
30
What qualities of a set of instructions would require you to return them?
If they sought to limit your authority or discretion, or required you to act other than in accordance with the law or the Handbook
31
In what form, to whom, and by when should you accept instructions?
In writing confirming the terms (including basis of charging) to the professional client or the client, whoever gave you the instructions, before doing the work unless this is not reasonably practicable, in which case as soon as reasonably practicable
32
If you are a BSB entity, what must you ensure is in the terms of your instructions?
Consent from the client to disclose and give control of files to the BSB in certain circumstances.
33
Do you need to accept instructions again if the terms of those instructions are varied?
No
34
When MUST you return your instructions?
If you discover that legal aid has been wrongly obtained by false or inaccurate information; or your client refuses to make disclosure which is required.
35
When MAY you return your instructions?
Your professional conduct is being called into question; the client consents; a hearing becomes fixed for a date you are not available; illness, injury, childbirth, bereavement etc; jury service; do not receive payment; you become aware of confidential information of another person relating to the matter; your application to come off the record is granted; or some other substantial reason.
36
In what time frame must you report yourself to the BSB?
Promptly
37
In what circumstances must you report yourself to the BSB?
Charged with an indictable offence; convicted of any criminal offence (except a minor offence); subject to disciplinary action by another regulator; subject to intervention as a manager by another regulator; bankruptcy; winding up; director's disqualification; administration proceedings; serious misconduct; authorised to practice by another regulator.
38
When should you report another barrister to the BSB?
When you have reasonable grounds to believe that they have engaged in serious misconduct, and that belief is genuine and reasonably held
39
When are you not required to report another barrister to the BSB?
The facts giving rise to the misconduct are in the public domain e.g., widely reported in national media; the barrister has already reported themselves; the information leading to your knowledge of the misconduct is subject to legal privilege; you become aware of the misconduct through your work on a Bar Council advice line.
40
What must you not do to someone who makes a report to the BSB?
Victimise them
41
What is the purpose behind reporting to the BSB?
It assists the BSB in investigating potential instances of serious misconduct, and this is in the public interest.
42
What is serious misconduct?
It includes dishonesty, assault or harassment; seeking to gain access to confidential information relating to the other party's case or another member of chambers or staff or pupils; encouraging a witness to give untruthful or misleading evidence; misleading the court or an opponent; being drunk or on drugs in court; failing to report promptly to the BSB; reporting someone as a litigation tactic or for any other improper motive; conduct that poses a serious risk to the public
43
What should you do before reporting someone to the BSB for serious misconduct?
Carefully consider all of the circumstances, including whether confidential matters may have a bearing on their behaviour; whether they've been given an opportunity to explain themselves; whether any explanation could be given for their behaviour; and whether the matter has been raised in the litigation.
44
Why are those working on a Bar Council advice line unable to report barristers?
Because it would not be in the public interest to inhibit people to offer ethical advice to barristers, or prevent those needing advice from seeking it.
45
What should a person working on a Bar Council advice line do if a barrister admits serious misconduct to them?
Advise them to disclose this misconduct to the BSB
46
What should you do if you commit misconduct which falls short of serious misconduct?
Report it to your Head of Legal Practice
47
Do you have to inform the court about relevant decisions and legislation that goes against you?
Yes, you must take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions
48
Which overrides which, your duty to the court, or your duty to keep your client's affairs confidential?
Your duty to keep your client's affairs confidential.
49
What does your duty not to abuse your role as an advocate involve?
Don't make statements or ask questions merely to insult or annoy a witness; don't make serious allegations against a witness unless you give them an opportunity to answer the allegation in cross-examination; don't make serious allegations against another person or suggest they did the crime unless you have reasonable grounds for this, the allegation is relevant to your case, and you avoid using their name
50
Generally speaking, what must you do before returning your instructions?
Gain your client's consent and clearly explain to your client or professional client the reasons for doing so
51
Which core duties are you bound to at all times?
Core duty 5 (public trust) and core duty 9 (open and co-operative with regulators)
52
In what ways should barristers moderate the tone of things they post on social media?
Avoid comments designed to demean or insult, avoid getting drawn into heated debates/arguments, take care to consider the tone of what you are posting
53
Can you share confidential information with your client over social media?
It is inadvisable, but can be done if your client agrees and you are satisfied, including by researching the platform's privacy policy, that confidentiality will not be endangered.
54
Does the BSB Social Media guidance apply to personal social media accounts?
Yes
55
When do the non-permanently applying core duties apply?
When supplying legal services
56
How is recruitment made to promote equality and diversity?
All members of selection panels must be trained in fair recruitment, and recruitment processes must use objective and fair criteria
57
How is diversity in chambers monitored?
Chambers regularly reviews the number and percentages of different characteristics in its workforce, the applications it receives, and the allocation of work. It analyses that data and investigates any disparities.
58
What is the requirement around harassment in chambers?
Chambers must have a written anti-harassment policy which states that harassment will not be tolerated and established a right to complain and the procedure for dealing with complaints.
59
What must chambers do in relation to parental leave?
They must have a flexible right to parental leave and to return to chambers afterwards, as well as a waiver/reduction on chambers' rent.
60
What are the protected characteristics under the Equality Act?
Age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation.
61
What is direct discrimination?
A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
62
When does a person discriminate against a disabled person?
When A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
63
When does a person not discriminate against a disabled person?
If A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
64
What does the Equality Act provide for in terms of the treatment of barristers?
Non-discrimination and non-victimisation in offering pupillage or tenancy, in the terms of pupillage or tenancy, in termination of pupillage or tenancy, and in instructing a barrister; non-harassment across the board; reasonable adjustments; this includes barristers' clerks.
65
What is unconscious bias?
Unconscious views which lead someone to form opinions about others which may not be right. For example, when a person thinks better of someone because they believe they're alike or less of someone because that person is different to them, for example, they might be of a different race, religion or age
66
What does misleading the court include?
Being complicit in another person misleading the court; and later realising that you have mislead the court and failing to correct the position.
67
What does 'recklessly' misleading the court mean?
Being indifferent to the truth or not caring about whether something is true or false
68
What should you do if your client confesses to you that they have committed the crime?
You should not disclose this to the court without your clients consent, and you can pursue a 'not guilty' plea by testing the reliability of the prosecution evidence and submitting to the jury that the prosecution has not proven guilt.
69
What can you NOT do if your client confesses to you that they have committed the crime?
You cannot run a positive case i.e., suggest to witnesses that your client did not do the crime, call your client or witnesses to show this, suggest that someone else did the crime, or run an alibi
70
What should you do if there is confidential information and you would mislead the court if you did not disclose it?
As your client for consent to disclose it. If they refuse this, you must return your instructions. You must not tell the court this information if consent is refused.
71
What should you do if your client has undisclosed previous convictions (non-mandatory sentence scenario)?
Ask your client for consent to disclose them. If they refuse, you can continue to act you cannot put forward a positive case of good character, and if you are asked a direct question about previous convictions you cannot lie. If this happens, you will have to withdraw if your client does not give consent to disclose.
72
What should you do if your client has undisclosed previous convictions (mandatory sentence scenario)?
Ask your client for consent to disclose them. If they refuse, you must advise them that you cannot continue to act if they refuse to disclose.
73
What is the principal rule about referral fees?
You must not pay or receive them.
74
What kinds of conduct are unlikely to breach core duties 3 (honesty and integrity) and 5 (public trust)?
Minor criminal offences and conduct in your private life (unless it involves an abuse of position or non-minor criminal offence)
75
What is a minor criminal offence?
Essentially, a motor vehicle offence.
76
What should you do if someone offers you a gift?
Consider carefully whether the circumstances and size of the gift would reasonably lead others to think that your independence had been compromised
77
Who should you correspond with when communicating to the other side?
The other party's legal representative, rather than the other party themselves.
78
Can you refer to your status as a barrister in a private dispute?
No - this is likely to constitute an abuse of position and breach CD3 and CD5.
79
Can you make a payment for a referral from an intermediary?
No
80
What is a referral fee?
Any payment or other consideration in return for the referral of instructions by an intermediary. A payment for other reasons is not a referral fee.
81
What are the three stages of makes reasonable adjustments?
Taking such steps as are reasonable to a) provision, criterion, or practice b) physical feature or c) absence of an auxiliary aid, which puts A at a substantial disadvantage.
82
What is the definition of harassment in the Equality Act?
Unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B
83
When does the cab rank rule apply and not apply?
It applies when you are given instructions by a professional client but not when you are given them by the court or direct access.
84
What is the definition of victimisation in the Equality Act?
A person (A) victimises another person (B) if A subjects B to a detriment because they have (or may) bring proceedings under the Equality Act, give evidence or anything else in relation to such proceedings, or make an allegation that there has been a breach.
85
Can you talk to your witness while they are giving evidence?
Only if you get the permission of the court and opposition, but not about the case.
86
What are examples of breaching confidentiality?
Allowing other people to see confidential information; losing portable devices with unsecured confidential information stored on them; not disposing of client papers securely.
87
What is a barrister's confidentiality duty in relation to work undertaken by others on their behalf?
They are advised to ensure that clerks and other chambers' staff are aware of the need to handle
and dispose of confidential material securely
88
What steps should you take to protect the confidentiality of paper documents?
Papers should not be left where others can read them; stored safely when not being used; and disposed of securely when finished e.g., shredded.
89
What steps should you take to protect the confidentiality of digital documents?
Computers should be placed so that they cannot
be overlooked, especially when working in public places; documents must be password protected and preferably encrypted; removable devices should be used to store only information needed for immediate business purposes, not for permanent storage; care should be taken not to lose or have removable devices stolen; and documents should be disposed of securely e.g., permanently deleted.
90
What is the definition of a client?
The person for whom you act and, where the context permits, includes prospective and former clients
91
What must you make sure of if you are going to act for more than one client?
That you are able to act in the best interests of each client as if that client were your only client.
92
What does a competent standard of work and service include?
Treating each client with courtesy and consideration; advising your client in terms they can understand; avoiding incurring unnecessary expenses; reading your instructions promptly.
93
What should you do to ensure compliance with CD7?
Keep your professional knowledge and skills up to date by regularly taking part in professional development and educational activities.
94
How can you help a client who is finding the court process difficult and stressful?
Ensure they understand the process and what to expect from it and you, and avoid any unnecessary distress for them.
95
When might disclosure of confidential information be required by law?
Under the proceeds of crime act 2002.
96
Should you ever advise your client to get different legal representation?
Yes - if that would be in their best interests. You can advise them to get more junior or more senior representation, or representation with different experience; more barristers or fewer barristers; or different solicitors.`
97
What should you do if you think your solicitor or any other intermediary has been negligent towards your client?
Advise your client of this and suggest obtaining alternative representation.
98
What must you make sure of regarding your status if you are a pupil?
That you do not hold yourself out as a member of chambers or allow your name to appear as such, and that any clients understand your status.
99
Who are BSB authorised individuals?
Individuals authorised to carry out reserved legal activities by the BSB
100
How does a barrister obtain a provisional practising certificate?
Successfully complete a period of pupillage (6 months) and pay a fee.
101
`Can you supply legal services if you are a pupil with a provision practising certificate?
Yes, but only with the permission of your pupil supervisor, head of chambers, or HOLP
102
If you delegate work to someone else, who is responsible for that work?
The barrister delegating.
103
Who is responsible for a clerk's work?
Their barrister.
104
What should you do if you realise there is a conflict of interest between an existing client and a prospective client?
Fully disclose to the clients the nature and extent of the conflict and obtain their informed consent for you to act, so long as you are able to act in each of their best interests.
105
What should you do if instructions are delivered so late that you have no time to prepare?
If no competent advocate would have the time to prepare, you must accept the instructions under the cab rank rule.
106
What should you do if you are instructed in a case you are likely to appear as a witness in?
Refuse the instructions, unless the matter on which you are likely to be called is peripheral or minor and unlikely to lead to your involvement being challenged at a later date.
107
When agreeing terms upon which you will act, do you need to specify these terms?
Yes, but this can be simply by referencing or linking standard terms of your chambers or the bar council.
108
What do you need to do if you agree to work on the basis of terms suggested by the client?
Agree in writing that this is the basis on which your work is done.
109
Do you have to confirm your acceptance of instructions with the professional client?
No, your clerk can do that for you
110
What format should your written acceptance of instructions take?
It can be email or letter.
111
When returning instructions should you have regard to the client's ability to obtain alternative legal assistance?
Yes, try to ensure that the client is not adversely affected because there is not enough time to
engage other adequate legal assistance.
112
What happens if your professional client withdraws?
You are no longer instructed and cannot continue to act, unless appointed by the court or you otherwise receive new instructions.
113
What is the position if a fundamental change is made to the basis of your renumeration?
You treat the original instructions as withdrawn and determine whether you are obliged to accept the new instructions (and if not, whether you want to).
114
Can you decline a case if you disagree with the nature of the case, the characteristics of the client, or the financial support received by the client?
No.
115
What is the cab rank rule?
You must accept instructions you are given so long as they are appropriate taking into account your experience, seniority and field of practice.
116
When does the cab rank rule not apply?
When you are required to refuse the instructions for some reason; taking the work would require you to work outside your ordinary working time or cancel a commitment already in your diary; you are a QC and you are not given a junior where it is in the interests of justice that you are; you haven't been offered a proper fee or paid (if that is agreed); and some other reasons.
117
How do you determine whether a fee offered is proper?
According to the complexity, length and difficulty of the case; your ability, experience and seniority; and the expenses which you will incur.
118
How might you determine that a professional client represents an unacceptable credit risk?
If they have judgments which have been made against them and are unpaid; if they are on the Bar Council's list of defaulting solicitors; if they are subject to insolvency proceedings.
119
What should you do if you determine that your professional client represents a serious credit risk?
Before refusing instructions, consider whether that risk could be mitigated e.g., through advanced payment.
120
Does the cab rank rule apply to professional clients not regulated by the SRA?
Yes, so long as they are regulated by another approved regulator.
121
What are 'reserved legal activities'?
The exercise of a right of audience; the conduct of litigation; reserved instrument activities; probate activities; notarial activities; and the administration of oaths.`
122
Who can undertake reserved legal activities?
Individuals who have a practising certificate, and entities authorised to do so.
123
Who is eligible for a practising certificate?
You are a barrister who has not been disbarred or suspended, in the last 5 years you completed pupillage or held a practising certificate, or some other categories.
124
What does a provisional practising certificate authorise a pupil to do?
Exercise a right of audience before every court in relation to all proceedings.
125
Who is eligible for a limited practising certificate?
Barristers called to the bar before 1 January 2002 who is not otherwise eligible for a full practising certificate
126
What does a limited practising certificate authorise a barrister to do?
Exercise any right of audience they had by reason of being a barrister and was entitled to exercise on 30 July 2000
127
What is the Bar Council?
The representative body for barristers, runs an ethical enquiries service for barristers.
128
What is the Bar Standards Board?
The regulatory body for the bar, sets standards, investigates breaches, and imposes sanctions
129
To whom should complaints about barristers be made?
If the complaint is from a client, to the Legal Ombudsman. Otherwise, to the BSB
130
What is the Professional Statement for barristers?
A document produced by the BSB describing the knowledge, skills and attributes that all barristers will have on 'day one' of practice'
131
Can barristers handle client money?
No, aside from receiving payment for their services
132
Which core duties is CD2 (best interests) subject to?
CD1 (duty to court), CD3 (honesty and integrity) and CD4 (independence)
133
Do the core duties apply to unregistered as well as registered barristers?
Yes.
