Key sections Flashcards
1
Q
Dishonesty constitutes serious misconduct
A
gC96.1
2
Q
Duty to act in the best interests of each client, provide a competent standard of work and service, and keep the affairs of each client confidential includes obligation to do so without regard to your own interests or consequences to you, which may include taking reasonable steps to mitigate any breach
A
rC15.2
3
Q
Duty to the court includes that you must not knowingly or recklessly mislead or attempt to mislead the court
A
rC3.1
4
Q
Duty to the court does not require you to act in breach of your duty to keep the affairs of each client confidential
A
rC5
5
Q
Must cease to act and return instructions if the client refuses to authorise you to make a disclosure to the court which your duty to the court requires you to make
A
rC25.2
6
Q
Must not accept instructions if they require you to act other than in accordance with the law or the provisions of the handbook
A
rC21.6
7
Q
Providing a competent standard of work and service also includes seeking to advise your client in terms they understand
A
gC38.2
8
Q
You should remember that your client may not be familiar with legal proceedings and may find them difficult and stressful. You should do what you reasonably can to ensure the client understands the process and what to expect from it and you. You should also try to avoid any unnecessary distress for your client. This is particularly important when dealing with a vulnerable client.
A
gC41
9
Q
You must promptly provide the BSB with information it requires.
A
rC64
10
Q
Obligation to provide the BSB with information includes responding promptly to any request for information from the BSB whether it relates to you or to another BSB regulated person or unregistered barrister.
A
gC92
11
Q
Information requested by BSB still subject to legal professional privilege unless they send a notice.
A
gC93
12
Q
Assault or harassment is serious misconduct
A
gC96.2
13
Q
If you believe or suspect there has been serious misconduct, the first step is to carefully consider the circumstances
A
gC97
14
Q
The circumstances to consider when you suspect there has been serious misconduct include whether they have been given an opportunity to explain their actions
A
gC97.2
15
Q
Must report to the BSB if you have reasonable grounds to believe there has been serious misconduct. This is the case if you have material establishing a reasonably credible case, should then report so BSB can investigate.
A
rC66, gC98
16
Q
Misconduct falling short of serious misconduct should be reported to your head of chambers
A
gC102
17
Q
It is serious misconduct to fail to report serious misconduct to the BSB
A
gC96.8
18
Q
You must not victimise anyone for making a good faith report under rC66
A
rC69
19
Q
Complying with CD2/7/6 includes protecting the client’s confidentiality except for disclosures permitted or required by law to which your client gives consent
A
rC15.5
20
Q
All client communications are privileged and that such communications, client information and
Chambers confidential data (financial or otherwise) must be stored, handled and disposed of securely
A
Confidentiality guidance Para 1
21
Q
CD7 includes duty to inform professional client, or direct access client, as far as reasonably possible in sufficient time to enable appropriate steps to be taken to protect the client’s interests if it becomes apparent you won’t be able to carry out the instructions within a reasonable time or there’s an appreciable risk you may not be able to undertake the instructions.
A
rC18
22
Q
Duty to act in the best interests of your client is subject to your duty to the court.
A
rC4
23
Q
CD2 is subject to CD1, 3, 4
A
rC16
24
Q
CD3 includes that you not draft any document containing an allegation of fraud unless you have clear instructions and reasonably credible material that establishes an arguable case
A
rC9.2c
25
Should not accept instructions if they seek to limit your ordinary conduct of authority/discretion
rC21.5
26
Situations where you must cease to act and return instructions: rC21 situations arising, becomes apparent legal aid has been wrongly obtained and action to remedy is not immediately taken by client, client refuses to authorise you to make disclosure of fact or document
rC25
27
Must consider at all times whilst conducting a case whether it’s in the best interests of a direct access client to instruct a solicitor. Must inform them of this if you think it is and withdraw in accordance with rC25/6 unless they instruct a solicitor.
rC123
28
CD2 includes duty to consider whether interests better served by alternative legal representation and advise to that effect.
rC17
29
Must not cease to act and return instructions without explaining to client (lay or professional) and getting their consent. Must not return to someone else without consent of one of them.
rC27
30
Doesn’t matter if you don’t believe your client as long as what you put forward accords with your instructions and you don’t mislead the court.
gC6
31
May cease to act and return instructions if you do not receive payment in accordance with the terms agreed, subject to rule 26.7 if conducting litigation. You must give reasonable notice requiring the non-payment to be remedied and making it clear to the client that failure to remedy the non-payment may result in you ceasing to act.
rC26.5
32
If you are conducting litigation and want to withdraw your client has to consent to your ceasing to act or you have to apply to the court to come off the record.
rC26.7
33
In deciding whether to cease to act you should, where possible and subject to your overriding duty to the court, ensure your client is not adversely affected because there isn't enough time to engage other adequate legal assistance.
gC83
34
Having accepted public access instructions you must notify your public access client in writing and in clear and readily understandable terms of the work you have agreed to perform and the fees which you propose to charge
rC125.1, .7
35
Must treat your client with courtesy and consideration
gC38.1
36
There may be particular difficulties if you withdraw right before the hearing and are instructed on a public access basis
Public Access Guidance
37
If you realise you have received confidential documents by mistake you should not read them (or not read them any further) and return them
Documents Disclosed to Counsel By Mistake
38
May cease to act if you become aware of confidential or privileged information relating to the matter on which you are instructed.
rC26.6
39
Case law to consider when determining whether you are required to return your instructions in accordance with rC26.6. Establishes that when you read a confidential document disclosed by mistake you may come under a duty of confidence (enforceable by court order) not to use the document or disclose it to anyone including your client. This duty of confidence might lead to you being professionally embarrassed because you are no longer able to act in the best interests of your client or maintain your independence.
gC86
40
In the context of the inadvertent disclosure of a privileged document in civil litigation, the party may use the document or its contents only with the permission of the court. If refused, the court can grant an injunction.
CPR Rule 31.20, Al-Fayed v Metropolitan Police Commissioner (2013), CA
41
When documents are inadvertently disclosed in criminal proceedings, the Crown Court has jurisdiction to grant an injunction
R v B & G (2004), CA
42
When material is disclosed that is affected by PII, it's for the court to decide the question of disclosure and subsequent use. The court balances the public interest and the due administration of justice.
Tchenguiz
43
Your duty is to your client, not to your professional client or other intermediary if any.
gC36
44
Advocates must adapt to the witness, not the other way around
Lady Justice Hallett in R v Lubemba
45
Lubemba principles apply to child defendants as well as any other vulnerable witnesses. It's misconduct to take on a case if not competent and an advocate is unlikely to be competent if they have not taken on specific training.
Lord Thomas in R v Grant-Murray and Anor
46
There are many reasons why a witness or party might be vulnerable in court; vulnerability should be identified at the earliest possible stage and information sharing is the key to achieving this; certain behaviour/characteristics/circumstances are 'risk factors' and these can indicate potential vulnerability; once vulnerability is suspected, action should be taken to obtain expert advice as necessary; vulnerability may be missed and should not assume it has correctly been identified before the matter comes to court; should ensure interests of vulnerable clients are taken into account and needs are met; special measures and other reasonable adjustments may be considered. All of this is part of CD1, also note gC38.
Key points in identifying vulnerability and making adjustments toolkit
47
Need to understand law and procedure, deal with vulnerability (including ensuring the young person understands what is happening and the consequences), be aware of their background and needs, have strong communication and engagement skills, be aware of and engage with key organisations in the youth justice sector
Youth proceedings competencies
48
If instructed in relation to financial or real property transactions, tax advice, or as a trust and company service provider then regulations apply. You must have policies in place; carry out a risk assessment and keep a record; undertake customer due diligence and keep a record; and monitor your relationship with your client. You may be required to carry out enhanced due diligence. You should take a risk-based approach. You may rely on CDD conducted by a solicitor with their consent but you remain legally responsible for the regulatory compliance of the checks. You may commit a criminal offence if you suspect money laundering and fail to make a disclosure.
Anti-money laundering guidance (executive summary)
49
CD3 includes not encouraging a witness to give evidence that is misleading or untruthful.
rC9.3
50
CD3 includes not rehearsing, practising or coaching a witness in respect of their evidence.
rC9.4
51
A barrister can take a witness statement.
Investigating and Collecting Evidence and Taking Witness Statements Guidance
52
It is the duty of Prosecution Counsel to read the Instructions delivered to him expeditiously and to advise or confer with those instructing him on all aspects of the case well before its commencement.
Should get instructions 10 working days after PDH. Should advise within 5 working days after receiving instructions. Should agree a timeline when the issues are complex. Should inform the CPS if need to return and discuss issues with the advocate receiving the brief.
If you receive a case management plan, should discuss and agree within 7 working days.
CPS will keep you informed without delay and consult with you before making decisions. This includes the offering of no evidence.
CPS will always consider views of victims. Should treat them with care and courtesy.
Should advise CPS within five working days if you have a different view to them in relation to an appeal.
CPS may withdraw instructions but will take proper steps to resolve disagreements.
Should inform CPS if there is a potential conflict of interest.
It is for Counsel to take all necessary decisions in the presentation and general conduct of the prosecution.
Until the conclusion of the trial the prosecution advocate and CPS have a continuing duty to keep under review decisions regarding disclosure. Should consult CPS over disclosure decisions.
Should consult CPS about policy issues arising. This includes acceptance of guilty pleas, offering no evidence, considering a re-trial, whether to lodge an appeal, certification of a point of law, and the withdrawal of the prosecution as a whole. It is your decision.
May have to adjourn to speak to CPS if they are not available at court.
Possibility of referral to senior crown prosecutor if there is no agreement.
May be asked to produce a report if you make a policy decision not endorsed by the CPS.
Should not indicate a plea would be acceptable before one is offered.
Before accepting a plea should speak to victim/family, ensure their views are taken into account, and keep them informed.
Role in sentencing is to draw the court's attention to aggravating and mitigating features and ensure the court is aware of the sentencing guidelines. Should draw attention to errors.
If you ask the judge to approve a course of action, should abide by the judge's decision.
Farquharson Guidelines: Role of Prosecuting Advocates
53
Need to self report to BSB if you have committed serious misconduct
rC65.7
54
CD7 includes taking all reasonable steps to avoid incurring unnecessary expense
gC38
55
Independence of prosecutors (including from police). Duty to ensure the right person is prosecuted for the right offence and to bring offenders to justice. Must be fair and objective. Must protect the rights of suspects and defendants whilst providing the best possible service to victims. They consider where is a realistic prospect of conviction and whether a prosecution is in the public interest. Should only accept a guilty plea if it matches the seriousness of the offence. The victim's views should be taken into account.
Code for Crown Prosecutors
56
If you receive instructions from a professional client, are self-employed, and the instructions are appropriate taking into account your experience and field of practice you must accept the instructions irrespective of the identity of the client, nature of the case, whether the client is paying privately or is publicly funded, and any belief or opinion you have formed about them and their guilt or innocence.
rC29
57
You must not withhold your services or allow them to be withheld on the ground that the nature of the case of conduct of the client is objectionable to you or any section of the public or on a ground relating to the source of financial support given to the client.
rC28
58
Situations where cab rank rule does not apply:
- Required to refuse to accept pursuant to rC21
- Would require you to do something other than in your ordinary working time
- Potential liability for negligence would exceed your indemnity insurance
- You're a KC and accepting instructions would require you to act without a junior but you consider the interests of the client require a junior to be instructed
- Accepting instructions would require you to do foreign work or act for a foreign lawyer
- Professional client not accepting liability for your fees or represents an unacceptable credit risk
- Not been offered a proper fee
- Private fees not agreed or not paid when required
rC30
59
Must not accept instructions if there is a real prospect you will not be able to maintain your independence
rC21.10
60
You must not do anything which can reasonably be seen by the public to undermine your honesty, integrity and independence
rC8
61
If offered a gift should consider carefully whether the circumstances and size of the gift would reasonably lead others to think that your independence has been compromised.
gC19
62
The giving or receiving of entertainment at a disproportionate level may also give rise to a similar issue and so should not be offered or accepted if it would lead others reasonably to think that your independence had been compromised.
gC20
63
Should be aware that comments may be responded to in different ways including re-posting
Social Media Guidance
64
Need to maintain confidentiality even if client says they don't mind communicating publicly
Common sense
65
Identification of client and complainant publicly and naming the court may be contempt
Common sense
66
Chambers must take reasonable steps to ensure that equality and diversity requirements within chambers are complied with, including reviewing allocation of unassigned work. Should take reasonable steps to distribute fairly amongst members. Need to take remedial action where appropriate, gives examples.
rC110
67
Chambers’ review of the allocation of unassigned work should specifically include work allocated to barristers of fewer than four years' standing.
rC112.2
68
Reviewing allocation of work includes investigating reasons for disparities
gC150.4
69
Remedial action may be taken to improve under-representation of particular groups in pupillage or tenancy as well as any employed person in chambers as long as it’s not in the form of positive discrimination. Might include encouragement of disadvantaged groups to apply for tenancy
gC146, Section 1 Equality Rules
70
Harassment may breach the law
Equality Act 2010
71
BSB has a regulatory interest in conduct outside the scope of a barrister’s professional life because they can impact on public confidence in them and the profession but this doesn’t mean regulatory action will necessarily follow. CD5 and rC8 likely to be relevant. Applies to unregistered barristers because covers conduct when not practising. Will strike a balance between the public interest and human rights (Art 8 – right to private and family life and 10 – freedom of expression, Art 9 – freedom of thought, conscience and religion, Art 11 – freedom of assembly and association). They are qualified rights so may take regulatory action if justified. Barristers are held to a higher standard than normal members of the public albeit they are not to be viewed as “paragons of virtue”. The closer non-professional conduct to professional, practice, the greater the justification for regulatory action is likely to be. Unlikely to have a regulator interest if the conduct has no impact on professional practice or on public trust and confidence.
Regulation of non-professional conduct guidance
72
Use of social media is likely to engage Article 10 (freedom of expression) but this needs to be balanced. Regulatory action may be justifiable in some circumstances, such as where you post material online which is dishonest or discriminatory. Remember that comments can be shared more widely than intended – reposting, shared or screenshotted. Be aware that things like geotags could link you to a particular client. BSB will consider manner in which views are expressed.
BSB Social Media Guidance
73
Remember rC18 (CD7 includes a duty to inform client if will not be able to carry out instructions in time) and rC26 (may cease to act if hearing becomes fixed on date you have indicated in your professional diary you will not be available, including a prior hearing relating to another case). You should make all reasonable efforts to prevent a clash of dates which involves communicating effectively with the court and managing and diarising your cases effectively. If it is impossible to prevent a clash, should exercise professional judgment in deciding which case is more important to attend. Considerations:
- Particular hearings may take precedence – should take direction from court and consider any relevant case management rules
- Where an order of precedence is not clear, should consider your duty to act in the best interests of each of your clients and, in particular, which of your clients is likely to be most prejudiced by alternative representation being arranged at short notice. Should consider needs of vulnerable clients and the impact on access to justice.
- Other relevant circumstances include the amount of time you have been instructed, the complexity and difficulty, and the amount of work you have already done.
Should take reasonable steps to keep all parties informed about the clash of dates, in particular ensuring your clients are informed as soon as possible. You should take reasonable steps to help clients find alternative representation.
Clash of hearing dates guidance
74
rC66 states that subject to your duty to keep the affairs of each client confidential and subject to rC67 and 68, you must report to the BSB if you have reasonable grounds to believe there has been serious misconduct by a barrister or registered European lawyer. Whether or not misconduct is serious is a matter of judgement in the circumstances. If not sure, should err on the side of caution and report to the BSB. The guidance in gC96 is not a closed list. Nb. harassment may breach CD8 as well as CD3 and 5. Breaching rC67 constitutes serious misconduct – e.g. threatening to report someone as a litigation tactic.
Discrimination can be serious misconduct. Under the Equality Act 2010 there are seven types of discrimination: direct, associative, by perception, indirect, harassment (deemed offensive by recipient even if not directed at them), victimisation (when someone is treated badly because they made or supported a complaint)
rC69 – Obligation not to victimise anyone for making a good faith report of serious misconduct. Pupils and very junior barristers may be particularly vulnerable because of dependence on senior barristers. Pupils may wish to discuss concerns first with colleagues, supervisor, or head of chambers. May wish to establish whether anyone else is aware of the misconduct and whether they are willing to report the misconduct or have already done so. Do not need to make the report yourself if you believe somebody else has already done so. You still remain under a duty to report if the matter concerns you personally but the BSB will not act on reports of harassment etc. without consulting you first. Giving the sensitivity of the issue, policy of not taking enforcement action. However, encouraged to report and always BSB always treats this sensitively.
BSB ethical helpline can help you consider whether something is serious misconduct.
Should make the report as soon as reasonably practicable.
BSB will try to protect your identify but it might be difficult to take enforcement action without identifying you.
rC68 removes duty to report in certain circumstances such as when already in the public domain or they/someone else has already reported it.
Alongside what is set out in rC97, should consider whether there is a risk behaviour will be repeated if no action is taken (e.g. harassment).
Issues of competence will not normally constitute serious misconduct unless so serious it poses a serious risk to CD5.
Duties as judge take precedence over duties as barrister. BSB would not normally take enforcement action over barrister acting in judicial capacity but would instead refer to Judicial Conduct Investigations Office. No obligation but not prevented from reporting barristers to BSB.
Reporting serious misconduct of others guidance
75
Barristers can collect evidence and take statements. However, should be careful about maintaining independence (rC21.10, gC73). May not be able to maintain independence if you appear as an advocate in a matter in which you’re likely to be called as a witness (unless peripheral). If likely to be a witness, can be involved in case preparations but cannot accept a brief even as a junior. Can only properly act if reasonably believe collection of evidence is unlikely to be challenged. Juniors should be able to conduct the case if the leader becomes indisposed. May be subject to wasted costs if the trial has to be adjourned because they should not have been involved.
Should withdraw if you are likely to be a witness on a question of fact – (rC25, gC73)
Investigating and collecting evidence and taking witness statements guidance
76
Legal aid is an alternative to direct access
rC120.3
77
A barrister must not discriminate unlawfully against, victimise or harass any other person on the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, gender re-assignment, sexual orientation, marital or civil partnership status, disability, age, religion or belief or pregnancy and maternity.
rC12
