Example scenarios Flashcards
Your client, aged 33, is charged with a daytime dwelling house burglary where he reached in through an open window of a student house and took a laptop when the residents were out. He pleads guilty and discloses to you that he has two previous convictions for dwelling house burglary, one when he was 25, and the second when he was 30. This is his third “qualifying burglary” for which a minimum custodial sentence of three years must be imposed unless it would be unjust to do so. There are no features which would make it unjust. The prosecutor opens the facts and tells the court that your client has no previous convictions or cautions.
What should you do, and what Core duties, conduct rules and guidance apply?
Core duties affected here:
1. You must observe your duty to the court in the administration of justice [CD1]
2. You have a duty to act in the best interests of your client [CD2]
3. you must provide your client with a competent standard of service [CD7]
4. You have a duty to keep the affairs of each client confidential [CD6]
5. You must maintain your independence [CD4].
6. You have a duty to act with honesty and integrity [CD3]
7. You must not behave in a way that is likely to diminish the trust and confidence which the public places in you or in the profession [CD5].
What to do:
Explain that your duty to the court overrides your duty to him [rC4]. Ask for his consent to disclose the existence of the previous convictions to the prosecution and the court. tell him that your duty to the court does not require you to act in breach of your duty to keep his instructions confidential [CD6, rC5]. Your duty to the court doesn’t permit or require to disclose confidential information which you have obtained during your instructions and which your client hasn’t authorised you to disclose to the court[rC5, gC8]. However, rC6 requires you to not knowingly mislead the court. You have obligations under both these rules.
if there is a risk that court will be misled unless you disclose confidential info which you have learned during your instructions, you should ask the client for permission to disclose it to the court [gC11]
Although the clinet tells you that he’s got previous convictions which the prosecution aren’t aware, you can’t disclose this without his consent. However, where mandatory sentences apply, the non-disclosure of previous convictions will result in the court failing to pass sentence required by law. In that situation, you must advise your client that if he refuses to allow you to make the disclosure you must cease to act and return your instructions see [gC11, gC12 and rC25.2]
You shouldn’t disclose the info to the court or the prosecution [gC11] and make a note of your discussions and ask your client to sign it. if you can discuss the situation with your instructing solicitor.
You must not cease to act without clearly explaining the reasons for doing so to your client or your professional client [rC27.1b]
Julia is a criminal barrister specialising in prosecuting and defending those accused of serious sexual offences. She has been instructed to represent a young man accused of rape. The allegation arises out of consensual sexual behaviour at the defendant’s flat after he had met the complainant at a nightclub. The complainant alleges that she told the defendant that she did not want to continue with the consensual sexual intercourse they were engaging in, but the defendant ignored her and carried on regardless. There is no other evidence. Julia was recently interviewed on the local television regarding a similar case she prosecuted. During the interview she endorsed a project called “Love Consent” which was being introduced at a major university to better inform students about these issues.
In conference in Julia’s chambers the defendant’s opening observation is, “you’re that prosecutor I saw on television. I asked my solicitor to find me a sympathetic defence lawyer!”
Core duties involved:
1. you must act within the best interests of your client [CD2]
2. you must act with honesty and integrity [CD3]
3. You must provide a competent standard of work/ service [CD7]
What this entails:
Julia must act with honesty and integrity and treat the defendant with courtesy and consideration [gC38.1]. It will involve her emphasising her professional approach to every case including her duty to act in the best interests of every client.
she must not of course mislead the defendant or his instructing solicitor and deny involvement in the television interview or endorsing the “Love Consent” initiative. She would stress that this has no bearing on her ability to represent the defendant and provide a competent standard of work/ serice and that she is duty bound to act in his best interests.
Julia should make it clear to the defendant that if he doesn’t wish her to continue to represent him, she will withdraw from the case.
Jonathan is the prosecuting barrister in the case. He becomes aware of unused material in the form of a Facebook post by the complainant the morning after the alleged incident which reads, “Great night last night! #seconddate?”. The CPS have not disclosed this to the defence.
With reference to the applicable core duties, the Farquharson Guidelines, and the Code for Crown Prosecutors what action should Jonathan take?
On receipt of instructions the prosecutor should advise the CPS (ordinarily in writing) if he disagrees with a previous disclosure decision (Farquharson 1.4 vi) or due to an evidential deficiency there is no longer a realistic prospect of conviction (Farquharson 1.4 iv).
The material in question should have been disclosed to the defence as it satisfies the test in s3 CPIA 1996. It might reasonably be considered to undermine the case for the prosecution or assist the defence as it provides a basis for undermining the credibility of the complainant and arguably is of direct relevance to the issue of consent.
Given this evidence Jonathan must consider whether the case still passes the evidential stage of the Full Code Test in the Code for Crown Prosecutors. He must make an objective assessment of the evidence including the impact of the unused material disclosed to the defence. He must consider whether there are any reasons to question the reliability of the evidence, including its accuracy or integrity. He must also consider whether there are reasons to doubt the credibility of the evidence. If he concludes that there is no longer a realistic prospect of conviction he should not continue with the case.
If Jonathan decides not to continue with the case, he should explain his reasoning to the CPS. If his instructing solicitor does not accept his advice, then Jonathan must withdraw from the case rc21.5 rc21.10. Jonathan must where practicable, speak with the complainant or her family to explain the position, ensure that her views are taken into account and explain his decision (Farquharson 6.3).
You are a barrister in private practice. You have been instructed to provide an advice on quantum by a local firm of solicitors. Your lay client is unhappy with the advice you provide and sends a letter of complaint to you at your chambers. Chambers has no complaints procedure that you are aware of so you decide to deal with it yourself. You are about to leave on a two month holiday sailing around the Caribbean islands and you decide to deal with the complaint on your return. When you return you discover that the letter of complaint has been lost and you can no longer remember what the substance of the complaint was.
What issues arise from this scenario?
As a barrister in private practice the standard of your work and the service you provide to each client must be competent (CD7). Each of your clients is entitled to expect that you are acting in their best interests (CD2). There is insufficient evidence to conclude that your advice has fallen below the required standard nonetheless you have received a complaint and it should be handled appropriately. The fact that you are not aware of whether a complaints procedure exists in Chambers suggests that you are failing to manage your practice competently (CD10). You are required to take reasonable steps to ensure that your practice is efficiently and properly administered and proper records are kept (C5.2 rC87). This is an approach that is likely to diminish the trust and confidence which the public places in you as a barrister and in the profession more widely (CD5). It is implicit in rC103 that Chambers must have a complaints procedure and must display information about it on their website and in their literature. Clients must be informed about their right to complain, (including a complaint to the Legal Ombudsman) how, and to whom, they can complain, and any time limits for making a complaint (rC99.1).You do not need to give your professional client this information (rC101). The lay client may complain directly to chambers without going through solicitors (rC99.2). All complaints must be responded to promptly (rC104) and there must be proper document and record keeping (rC108). When Chambers has dealt with a complaint, complainants must be told of their right to complain to the Legal Ombudsman (where applicable) (rC105). Your dilatory approach to the complaint puts you in material breach of the procedure and you are at risk of the complaint being referred to the Legal Ombudsman and the BSB.
At the end of your BPTC you are without a pupillage. A family member who practises from a small chambers rings you and says that although they are not formally looking for pupils they are able to “pull a few strings” to get you in. Should you accept?
Chambers must recruit fairly and in a way that does not discriminate unlawfully against any person (CD8). An unfair procedure lacks the honesty and integrity expected of the profession and would diminish the trust and confidence the public places in it (CD3, CD5). Pupils must be treated fairly and all vacancies for pupillage should be advertised openly (oC29 section D Code of Conduct).
You have successfully completed your pupillage and been offered a tenancy in chambers. What formalities do you need to comply with in order to embark upon practice?
The Practising Certificate Rules in part 3 of the Handbook require you to obtain a practising certificate. You are not entitled to practice as a barrister without one (rS6 rS8). The procedure for applying is set out in section C2 of the rules. As a practicing barrister you are obliged to be insured and join the Bar Mutual Indemnity Fund (rC76, rC77 section C of the Conduct Rules). You must also comply with the CPD rules set out in rQ130-8). A failure to comply with these fundamental requirements would put you in breach of the core duties (CD10, CD9, CD5, CD3) and would be clearly falling short of oC24 of the Conduct Rules.
During the course of your pupillage you become increasingly concerned about the conduct of your pupil supervisor. They regularly appear in chambers smelling of alcohol and their behaviour is becoming increasingly erratic. On three occasions whilst you have been with them in conference they have given advice which you believe is clearly incorrect. On each occasion you are aware that the instructing solicitor has removed the brief from chambers. What should you do?
This is obviously a very sensitive situation as you have reasonable grounds to believe that your pupil supervisor is under the influence of alcohol whilst in Chambers and when providing professional services to clients. In doing so he or she would be in breach of a number of core duties (CD1, CD2, CD3, CD5, CD7, CD10). The Conduct Rules include being drunk in court (gC96.7) and conduct that poses a serious risk to the public (gC96.10) “serious misconduct”. Given your suspicions and the basis for them (including the removal of the three briefs from Chambers) the first step is to consider all the circumstances carefully (gC97) which would include whether your pupil supervisor has been offered an opportunity to explain his or her conduct and if not, why not (gC97.2) and any explanation that could be offered for the conduct (gC97.3). This would inevitably involve you raising the matter within Chambers in the first instance probably through your head of Chambers and you may seek advice from the Pupillage Helpline. You are not under a duty to report serious misconduct by others if you are aware that the person in question has reported the matter to the BSB him or herself (self reporting of serious misconduct rC65.7) (rC68.2). Applying the spirit of rC68.2, if Chambers have taken action and reported your pupil supervisor to the BSB you need not take action. Similarly if the circumstances giving rise to your concerns have been considered within Chambers pursuant to gC97 only if the issue persists are you likely to be under any duty to report under rC66. You must act with honesty and integrity in dealing with the matter (CD3) and should only act on the basis of a genuine and reasonably held belief that serious misconduct has taken place (rC67). Throughout it all you should maintain your independence (CD4). Your core duties under CD5 and CD10 would be compromised in the event you fail to handle the situation appropriately.
You have received and accepted instructions to appear in case ‘A’ (a civil case to be heard on 20 April). You have done a lot of preparatory work upon it and have seen the professional and lay clients in conference on a number of occasions. You have also accepted instructions to defend in a serious criminal case (case ‘B’), expected to be tried in the week beginning 1 April and to last for 5 days but which may well go on longer. Before you have conferred with the client in case ‘B’, you learn that it will not be heard until the week beginning 15 April. Both solicitors assert priority and both clients are anxious to have your services. Which case do you do? Why?
The Code of Conduct is not very helpful about the ethical issues arising out of this question. Generalities are covered such as CD2 and CD10.
rC26 is a little more helpful but relates to an issue not addressed by the question.
gC52 advises us to go to the BSB’s website for what to do when you have a listings-clash as in the question.
www.barstandardsboard.org.uk/regulatory-requirements/bsb-handbook/code-guidance
The current guidance is set out below.
In terms of practical advice, you should, of course, do your best to avoid diary clashes in the first place, including telling your client if they would be better off booking another barrister. Even so, there are circumstances where you can accept two cases which may overlap. For example, where two cases are sufficiently far into the future that a clash is unlikely to occur, you can ask the clients whether they want to instruct you bearing in mind the potential clash. If they still want to proceed, you will need to make sure they are properly informed of the relevant timings and the point at which a decision will need to be made about whether to stick with you. Make sure you give proper thought to the amount of time clients will need to instruct someone else. It is probably best to warn clients who seem to be hanging on later than is sensible!
Where you have to choose between clashing bookings, you have to decide which is most important to attend. In some cases, one hearing may take precedence as a matter of law or procedure. In the absence of other factors, the BSB has suggested these rules of thumb:
(a) criminal takes precedence over civil
(b) part-heard cases are likely to trump new matters; and (
c) and fixed date hearings may take precedence over ‘floaters’.
Ultimately you have to judge what is best in the circumstances. You need to consider the needs of any vulnerable client and access to justice considerations.
The Bar Council’s guidance acknowledges the common practice of barristers accepting a second diary booking on the basis that they are currently not available and will not become available unless an existing commitment falls away, often with another barrister booked to cover if the first barrister is unable to attend the hearing. This is fine so long as the decision as to your availability is made at a time which ensures that the client’s best interests are served, and you have enough time to prepare for the hearing properly.
The golden rule is to always think about what is in the best interests of your clients. Of course, that approach makes long-term commercial sense anyway.
You are in-house counsel at a criminal defence firm. All of your work comes from the firm’s long standing regular clients. you have a strong reputation within your firm and in the local legal community. You have once again secured an acquittal for one of your regular clients, Renadict Cumbersnitch, who was on trial for assault. Renadict is the wealthy owner of a housing development company and is very grateful to you for your assistance. The following morning you arrive to the office to find a small bunch of flowers, a bottle of prosecco and an envelope containing a dinner invitation to a very fancy restaurant in Oxford. The invitation says that a limosine will come to pick you up at 8pm that evening and he looks forward to seeing you later to share some very nice wine with you to thank you for your efforts.
You feel overwhelmed at the generosity of the gift, but he is wealthy and a long-standing client and you feel obliged to accept the offer. What should you do?
You should accept the prosecco and flowers but politely decline the invitation to dinner.
The reason for this is that you would need to make an assessment of the value of the gifts and whether this would not only make you been seen as acting in a way that would diminish the trust and confidence in which the public places in you or in the profession [CD5] but also as to whether this would also make them feel that your independence has been compromised [CD4]
Taking into account the value of the flowers and the prosecco, you can therefore accept the prosecco and flowers and decline the dinner which would likely maintain your longstanding relationship with the client. see rC8 and gC19.
You are a prominent barrister who specialises in immigration and asylum. A television channel is producing a documentary on the legal challenges faced by asylum seekers in the UK. You often post on social media and you are approached by the channel for your assistance with the documentary. Coincidentally, you are dealing with an interesting case that is presently in the High Court and feel that it would be a good case to showcase the issues that the programme is dealing with.
What should you do?
This question raises the barrister’s compliance with the following core duties:
CD2- you must act in the best interests of each client.
CD3- you must act with honesty and integrity.
CD4- you must maintain your independence.
CD5- 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.
CD6- You must keep the affairs of each client confidential.
You should give careful consideration as to whether commenting on the individual case in which you have been instructed. You must consider your duty of confidentiality, whether making comment on your client’s case would be in their best interests and whether taking part would compromise your independence or the trust and confidence the public hold in the profession.
see also gC22 in which states the former prohibition on practising barristers expressing a personal opinion in the media in relation to any future or current proceedings in which they are briefed has been removed. Practising barrister must ensure that any comment they do make doesn’t undermine and is not seen as undermining their independence. Furthermore, any such comment must not bring their profession nor any other barrister into disrepute.
You are representing a Claimant in an immigration appeal. At lunch on the first day of proceedings your client asks to speak to you along with your instructing solicitor. Your client appears very agitated and irrate. When you speak with him, he says to you that, “The way you have conducted matters this morning has been shameful, your mastery of the brief was poor, your knowledge of the case seems limited and you seem to have no conviction in what you’re saying”. Finally he states that he “could do better without you.” You are extremely surprised by this outburst as you had spent a significant time on preparing his case and in your professional judgement, the case was going as well as it could be. How should you react?
You may cease to act and return your instructions because your professional conduct is being called into question but you should do your best in the circumstances to ensure that your client is not adversely affected.
Core duties involved:
CD2- best interests of the client
CD3: honesty and integrity.
CD7- You must provide competent standard of work and service to each client.
rC26- you may cease to act on a matter on which you are instructed and return your instructions if your professional conduct is being called into question.
gC38: in deciding whether to cease to act and to return existing instructions in accordance with rC26, you should where possible and subject to CD1, ensure that the client is not adversely affected because there is not enough time to engage other adequate legal assistance.
You are a barrister in criminal practice and you have been sent some papers to represent two sisters, Kylie and Susan, who have been accused of shoplifting from a clothes shop. The prosecution case is that Susan went into the fitting room and dressed herself in clothes from the shop under her own clothes, whilst Kylie kept watch. Both wish to plead not guilty. Kylie denies any involvement, but Susan says the whole thing was Kylie’s idea.
What should you do?
You must not accept instructions from both Susan and Kylie as there is a conflict of interest between them.
Core Duties involved:
CD2- you must act in the best interests of the client.
CD7 - you must provide a competent standard of work and service to each client.
There is a conflict of interest between the clients and you would not be able to conduct the case for one client without breaching the confidence of the other- see rC21.3
Even if the clients consented to you continuing to act, you couldn’t act in the best interests of each client and you could not give them a competent standard of service
