Part 2 Flashcards
1
Q
• You owe a duty to the court to act with:
A
independence in the interests of justice. This duty overrides any inconsistent obligations which you may have.
2
Q
• You may not knowingly or recklessly….
A
mislead the court
3
Q
• You must not abuse
A
your role as advocate
4
Q
• You must take reasonable steps to ensure that the court has before it,
A
all relevant decisions and legislative provisions. o This includes drawing attention to the court any decision or provision which may be adverse to the interests of your client.
5
Q
Example of not misleading the court
A
Not disclosing information without the client’s consent, and testing in cross- examination the reliability of the evidence of the prosecution witness and then address the jury that the prosecution had not succeeded in making them sure of the clients guilt.
6
Q
Example of misleading the court
A
Suggest that the client did not commit the crime, suggesting someone else committed the crime, putting forward an alibi.
7
Q
Mandatory sentence EXAMPLE
A
The non-disclosure of previous convictions will result in the court failing to pass the sentence required by law. Thus you must advise: if consent is refused, you will have to cease to act
8
Q
Non-mandatory sentences EXAMPLE
A
if client does not agree to disclose the previous convixtions, you can continue to present the client, but must not say anything to mislead the court, i.e. you could not advance a positive case of previous good character. But if judge directs a question, you must not lie, so you would have to withdraw.
9
Q
Documents: if your client has a document which should be disclosed but has not been, you…
A
cannot continue to act unless your client agrees to the disclosure.
10
Q
What does it mean when it says: “you must not abuse your role as an advocate”?
A
- You must not make statements or ask questions to merely insult, humiliate or annoy a witness.
- Must not make a serious allegation against a witness whom you had an opportunity to cross-examine, unless you have given the witness a chance to answer in cross examination
- You must not make a serious allegation against any person or suggest a person is guilty with which your client is charged unless:
- Reasonable grounds for the allegation
- The allegation is relevant to the clients case or credibility of a witness
- Where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary.
11
Q
You must not draft any statement of case, witness statement or other document containing:
A
- Any statement not supported by your client
- Any contention which you consider not properly arguable
- Any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud
12
Q
Can you make, offer to make, payments to witness contingent on evidence/outcome?
A
no
13
Q
Conduct on your part which the public may reasonably perceive as undermining your honesty, integrity or independence is likely to
A
diminish the trust and confidence which the public places in you or in the profession, in breach of CD5.
14
Q
Example of compromising your independence:
A
- Offering, giving, promising
- Commission or referral fee
- A gift (Apart from items of modest value)
To any client, professional client or intermediary
- Lending money
- Accepting any money from a client, professional client or other intermediary, unless it is payment for professional services or reimbursement of expenses or of disbursements made on behalf of the client.
15
Q
If offered a gift, consider
A
- whether the circumstances and size of gift would reasonably lead others to think that the independence had been compromised. If so, reject the gift.
- The giving or receiving of entertainment at a disproportionate level may be the same and should not be offered/accepted if it would lead others reasonably to think that the independence was compromised.
16
Q
The clients best interests (CD2) requires the barrister to
A
- promote fearlessly and by lawful means the clients best interests without regard to their own.
- You are expected to correspond at all times with the other parties legal representation.
17
Q
You duty to act in the best interests of each client is subject to
A
your duty to the court.
18
Q
Your duty not to mislead the court will include the following obligations: .
- You must not:
make submissions, representations or any other statement;….
A
- You must not:
- make submissions, representations or any other statement; or
- ask questions which suggest facts to witnesses which you know, or are instructed, are untrue or misleading.
You must not call witnesses to give evidence or put affidavits or witness statements to the court which you know, or are instructed, are untrue or misleading, unless you make clear to the court the true position as known by or instructed to you.
19
Q
Knowingly misleading the court includes:
A
- being complicit in another person misleading the court;
- inadvertently misleading the court if you later realise that you have misled the court, and you fail to correct the position;
20
Q
Your duty to the court includes drawing attention to t
A
the court any decision or provision which may be adverse to the interests of your client. It is particularly important where you are appearing against a litigant who is not legally represented.
21
Q
Your duty to the court does not prevent you from putting forward your client’s case simply because you do not believe that the facts are as your client states them to be…
what is the only obligation?
A
as long as any positive case you put forward accords with your instructions and you do not mislead the court. Your role when acting as an advocate or conducting litigation is to present your client’s case, and it is not for you to decide whether your client’s case is to be believed.
EXAMPLE: entitled to tell your witness that evidence appears to conflict, and that the court might find evidence difficult to accept. But if the witness maintains that it is true, it will be recorded in the witness statements and you will not mislead the court if you call them to confirm this.
You duty to the court does not permit or require you to disclose confidential information which you have obtained in the course of your instructions and which your client has not authorised you to disclose to the court.
22
Q
What do you do if your client tells you they have committed a crime?
A
- you would not be entitled to disclose that information to the court without your client’s consent; and
- you would not be misleading the court if, after your client had entered a plea of ‘not guilty’, you were to test in cross-examination the reliability of the evidence of the prosecution witnesses and then address the jury to the effect that the prosecution had not succeeded in making them sure of your client’s guilt.
23
Q
What happens if
client tells you that they have committed the crime:
WHAT WOULD MISLEAD THE COURT?
A
BUT YOU would mislead the court if: if you were to set up a positive case inconsistent with the confession, as for example:
- suggesting to prosecution witnesses, calling your client or your witnesses to show; or submitting to the jury, that your client did not commit the crime; or
- suggesting that someone else had done so; or
- putting forward an alibi.
If there is a risk that the court will be misled unless you disclose confidential information which you have learned in the course of your instructions, you should ask the client for permission to disclose it to the court. If your client refuses to allow you to make the disclosure you must cease to act, and return your instructions. In these circumstances you must not reveal the information to the court.
24
Q
EXAMPLE: client says they have previous convictions which the prosecution is not aware, you may not disclose this without their consent.
EXCEPTION:
A
. However, where MANDATORY SENTENCES apply, the non-disclosure of previous convictions will result in the court failing to pass the correct sentence required. In this situation, YOU MUST advise your client that if consent is refused to your revealing the information, you will have to cease to act.
In situations where mandatory sentences do not apply, and your client does not agree to disclose the previous convictions, you can continue to represent your client but in doing so must not say anything that misleads the court.
25
Can you always advance a positive case of previous good character?
**_Example:_** you could not advance a positive case of previous good character knowing that there are undisclosed prior convictions. Moreover, if the court asks you a direct question you must not give an untruthful answer and therefore you would have to withdraw if, on your being asked such a question, your client still refuses to allow you to answer the question truthfully. You should explain this to your client.
Similarly, if you become aware that your client has a document which should be disclosed but has not been disclosed, you cannot continue to act unless your client agrees to the disclosure of the document. In these circumstances you must not reveal the existence or contents of the document to the court.
26
You must not **abuse your role,** including:
1. you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;
2. you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross- examination;
3. you must not make a serious allegation against any person, or suggest that a person is guilty of a crime with which your client is charged unless:
1. you have reasonable grounds for the allegation; and
2. the allegation is relevant to your client’s case or the credibility of a witness; and
3. where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary.
4. you must not put forward to the court a personal opinion of the facts or the law unless you are invited or required to do so by the court or by law.
27
You must not do anything which could reasonably be seen by the public to undermine your
honesty integrity and independence
28
your duty to act with honesty and with integrity under CD3 includes the following requirements:
1. you must not knowingly or recklessly mislead or attempt to mislead anyone
2. you must not draft any statement of case witness statement affidavit or other document containing:
1. any statement not supported by your client or by the instructions
2. any contention which you do not consider to be properly arguable
3. any allegation of fraud, unless you have clear instructions to allege fraud AND you have reasonably credible material which establishes an arguable case of fraud
4. (in the case of a witness statement or affidavit) any statement of fact other than the evidence which you reasonably believe the witness would give if the witness were giving evidence orally
3. cannot encourage a witness to give evidence which is misleading or untruthful
4. must not rehearse, practice with or coach a witness in respect of their evidence
5. unless there is permission, you must not communicate with any witness (including your client) about the case while the witness is giving evidence
6. You must not make , or offer to make, payments to any witness which are contingent on their evidence or on the outcome of the case
7. you must only propose, or accept, fee arrangements which are legal
29
Conduct which the public may reasonably perceived as undermining your honesty, integrity or independence is likely to
diminish the trust and confidence with the public places in your profession, in breach of CD5
30
The following may be seen as compromising your independence
1. offering, promising or giving :
1. any Commission or referral fee ;
2. a gift (apart from items of modest value );
to any client, professional client or any other intermediary; or
1. lending money to any such client, professional client or other intermediary; or
2. accepting any money from any client, professional client or other intermediary, unless it is a payment for your professional services or reimbursement of expenses or of disbursements made on behalf of the client;
31
– if you are offered a gift by a current, perspective or former client, professional client or other intermediary,
WHAT MUST YOU DO?
consider whether the circumstances and size of the gift would reasonably lead others to think that your independence had been compromised. In this case, you should refuse the gift.
32
– The giving or receiving of entertainment at a disproportionate level may
give rise to a similar issue. It should not be offered or accepted if it would lead others reasonably to think that your independence had been compromised.
33
CD2 - require a barrister to promote fearlessly and by all proper and lawful means the lay clients best interests and to do so
without regard to their own interest
34
: CD3 and 4 provide that you must not permit
your absolute independence, integrity and freedom from external pressures to be compromised
35
CD6 preserve the confidentiality of your leg clients affairs and do not undermine this ....
1. without consent or permitted to do so by the law
36
Where the other side is legally represented, you are expected to
correspond at all times with the other parties legal representative - otherwise you will breach CD3.
37
cAN YOU PAY OR RECEIVE REFERRAL FEES?
NO
38
Making or receiving payments in order to precure or reward the referral to you by an intermediary is inconsistent with your obligations under
CD2 , CD3, CD4 and CD5
39
– Where public funding is in place, the legal aid agencies unified contract standard terms explicitly prohibit
contract holders from making or receiving any payment for the referral or introduction of a client, whether or not the lay client knows of, and to, the payment;
## Footnote
**Wheather in private or publicly funded case, a referral fee to which the client has not consented may constitute a bribe and therefore a criminal offence.**
40
the prohibition of referral fees does not prohibit proper expenses that are **not a reward for referring work,** such as genuine and reasonable payments for:
* Clerking and administrative services
* membership subscriptions that's a point or recommend a person to provide mediation, arbitration or adjudication services;
* advertising and publicity
41
You must within an agreed time scale or reasonable period ...
comply with any undertaking you give in the course of conducting litigation
42
Must barristers have insurance?
**–** You must within an agreed time scale or reasonable period comply with any undertaking you give in the course of conducting litigation
**gC33 -** ensure your insurance covers you in respect of any liability incurred in giving an undertaking
43
you must not discriminate unlawfully against, victimise or harass any person on the grounds
* of race,
* colour,
* ethnic or national origin,
* nationality,
* citizenship ,
* sex ,
* gender reassignment,
* sexual orientation,
* marital or civil partnership status,
* disability,
* age,
* religion or belief or
* pregnancy and maternity
44
With any foreign work you must comply with any role of conduct prescribed by the law or by any national or local bar of:
1. the place where the work is performed; and
2. the place where any proceedings take place or are contemplated
unless such rule is inconsistent with any requirement of the core duties
45
if you solicit work outside England and Wales, you must not do so in a manner which
would be prohibited if you are a member of the local bar
**_-_** it is your responsibility to inform yourself as to the applicable rules of conduct in another country
46
You must act in the best interests of each client (CD2) and provide competent standard of work and service to each client (CD7) and keep affairs confidential (CD6), this includes:
1. You must promote fearlessly and by all proper and lawful means the client’s best interests
2. Do so without regard to your own interest or any consequences to you
3. Without regard to the consequences to any other person
4. You must not permit your professional client, employer or other person to limit you discretion as to how best to serve the client’s interests.
5. Protecting confidentiality, except for disclosures required or permitted by law or which client gives informed consent.
47
Your duty is to the client, NOT
professional client or intermediary.
48
You can accept instructions to act for more than one client only if
you can act as if that client were your only client.
49
CD 7 requires a competent standard of work and service. This includes
: treating each client with courtesy and consideration, seeking to advise them in terms they understand, avoiding unnecessary expense, and reading instructions promptly, to see if there is a time limit or limitation period.
50
To provide competent work, you must
keep professional knowledge and skills up to date. You should not attend a police station to advise a suspect unless you have complied with the training requirements imposed by the BSB. Barristers undertaking publicly funded police station work under a criminal contract must comply with training.
51
Work should be allocated appropriately to
those with appropriate knowledge and expertise.
52
Ensure the client understands
the process and what to expect from it and you.
53
The duty to act in the best interests of your client includes a duty to consider whether their best interests are
served by different legal representation, if so, advise them this.
54
If you think that the professional client, other solicitor, or intermediate has been negligent whilst acting on your client’s behalf,
then
advise them this.
55
Your CD7 duty includes informing the professional client if you cannot, within the time requested carry out instructions,
OR
that there is an **appreciable** risk that they cannot take instructions.
56
You cannot mislead any person to whom you supply, or offer to supply legal services about:
* Nature and scope of legal services
* Terms
* Who is legally responsible
* Whether you are entitled to supply those services and the extent you are regulated to do this
* Extent of insurance against claims for professional negligence.
57
CD 2 and CD5 are undermined if there is a
lack of clarity as to whether services are regulated, who is supplying them, on what terms, and the redress clients have.
58
Clients may be misled if
barristers do not make it sufficiently clear that solicitors and barristers are separate and independent from one another and not responsible for the other’s work.
59
You must make clear that “ProcureCo” i
is not able to supply “reserved legal activities” and is not subject to regulation by the BSB.
60
Chambers may mislead where it fails to
creates the appearance that members of a chamber are self employed and not responsible for one anothers work.
61
Making comparisons with another could
MISLEAD
62
.If you carry out public access work, but are not authorised to conduct litigation,..
you would mislead clients if you lead clients to believe you are aurhorised.
63
You will have misled if you charge your own hourly rate for work done ....
by a devil or pupil. This may also breach CD3.
64
If you are an unregistered barrister, you would mislead if you
you led your client to believe you provided legal services to them as a barrister or subject to the same regulation as a practising barrister. Additionally, if you suggested that clients could seek a remedy under BSB or Legal Ombudsman.
65
You must make it clear as to
what capacity you are acting and who has legal responsibility.
66
If you are a pupil, do not hold yourself out as
a member of chambers or permit your name as so. Ensure the client understands the status.
67
**Personal responsibility**
You are **personally responsible** for
your own conduct and professional work. Must use professional judgment in relation to matters instructed and justify your decisions and actions. You must do this notwithstanding the client, professional client or employer’s views.
68
Can you delegate work to another person, and if so, who is personally responsible?
You can delegate or outsource to another person. But you remain personally responsible.
You are responsible for the service provided by all those who represent your dealings, including clerks.
69
**Accepting instructions:**
You must **not accept** instructions if:
1. Cannot fulfil obligation to act in best interest
2. Conflict of interest between your own personal interests and prospective client
3. Conflict of interest between prospective client and former or existing client. Unless there is consent
4. Real risk confidential information may be relevant, so if obliged to maintain confidentiality, you could not ac in the best interests
5. Instructions seek to limit your authority or discretion in court
6. Instructions require you to act other than in accordance with law or with the handbook
7. You are not authorised to act on instruction
8. You are not competent
9. You do not have enough time, unless it would nevertheless be in the client’s best interests
10. Real prospect you cannot maintain independence.
70
Where there is a conflict of interest between existing clients and a prospective client you may be entitled to
to accept instructions where you have fully disclosed this and they have given consent, and you were acting in the best interests of each client.
71
Competency and experience includes
* your ability to work with vulnerable clients
72
where instructions are delivered so late that no suitable, competent advocate would have adequate time to prepare, you ....
are not required to refuse instructions as it will be in the clients best interest for you to accept.
73
What happens if it is likely you will be called as a witness?
Where you are likely to be called as a witness, you might not be able to maintain your independence
74
**Defining terms or basis on which instructions are accepted**
rC22 – When you first accept instructions to act in a matter:
you MUST:
1. Confirm in writing acceptance, terms, including the basis of charging
2. Where instructions are from a professional client, confirmation must be sent to the professional client .
3. Where instructions are from a client, confirmation must be sent to the client.
4. You must ensure that there is consent from clients to disclose and give control of files to the bar Standards Board or its agents
75
following acceptance of instructions if they are buried , you are not required to
confirm again in writing acceptance post op you will be deemed to have accepted when you begin the work , on the same basis as before.
76
When first accepting instructions, you must give written acceptance of the instructions unless
not reasonably practical, if so do it as soon as reasonably practicable.
77
Whether conflicting set of terms and conditions, the law of
contract would dictate. take care that your client is aware what the basis for charging for any variation to work . A clerk may confirm on your behalf your acceptance of instructions.
When accepting instruction, confirmation by email will satisfied any requirement for written acceptance.
78
Rc25- Where instructions have been accepted, but Circumstances arise , you must cease to act and return your instructions promptly. In addition if:
1. there is legal aid involved and it becomes apparent that this funding has been wrongly obtained by false or inaccurate information and action to remedy the situation is not immediately taken by your client;
2. the client refuses to authorised you to make some disclosure to the court with your duty to the court requires you to make;
3. you become aware of the existence of a document which should have been but has not been disclosed, in the client fails to disclose it or gives consent
79
You **_MAY_** cease to act and return instructions if:
1. professional conduct is being called into question
2. client consent
3. you are self employed barrister and
1. despite reasonable efforts, a hearing becomes fixed for a date that you are unavailable
2. injury, illness, pregnancy, childbirth
3. you attend jury service
4. you do not receive payment in accordance with the terms agreed, but you must give reasonable notice requiring the non-payment to be remedied, giving advice about the consequences if not
5. you become aware of confidential information of another person which relate to the matter from which you instructed
6. some substantial reason for doing so
80
where there is a referral basis and your professional client withdraws, you are
no longer instructed and cannot continue to act unless appointed by the court post up you are not bound by the cab rank rule if appointed by the court. Here referral basis means we're professional client instructs a BSB authorised individual to provide legal services.
81
But there is a fundamental change the basis of remuneration, treat such a change as though your original instructions have been withdrawn and replaced by a new offer. Accordingly:
1. decide whether you are blind to accept the new instructions
2. if so , you must do so
3. if not , you may decline
4. if you decline to accept the new instructions , do you are not regarded as returning your instructions nor ceasing to act.
Rc27 - You must not:
1. Cease to act will return instructions without either;
1. obtaining your clients consent;
2. clearly explaining the reasons for doing so; or
2. return instructions to another person without the consent of your client or your professional client
82
* **_‘Cab rank’ rule rC28 and guidance gC88; rules rC 29-30 and guidance gC89-91_**
Rc28 - he must not withhold your services or permit your services to be withheld because of:
1. Nature of case is objectionable
2. Conduct, Opinions or beliefs
3. financial support
_Guidance_
This rule of conduct is concerned with the broader obligation not to withhold your services on grounds that are inherently inconsistent with your role in upholding access to justice and the rule of law.
83
cab rank rule. If you receive instructions from a professional client and are:
AND
1. self-employed barrister
2. authorised individual working within a BSB entity
3. a BSB entity
AND
and the instructions are appropriate , you must , accept the instructions come on irrespective of:
1. identity of client
2. nature case
3. financial means
4. belief or opinion
84
- the cab rank rule does not apply if:
1. required to refuse the instructions
2. but you would have to cancel a commitment, work outside ordinary working time
3. potential liability for professional negligence could exceed indemnity insurance
4. you are a Queen's counsel comma and acceptance would require you to without a junior, will you believe it should
5. Requires foreign work
6. accepting requires you to act for a foreign lawyer
7. the professional client:
1. doesn't accept liability for fees
2. an unacceptable credit risk
3. instructs as a lay client and not as a professional client
8. not being offered a proper fee for services
85
Whether a fee is proper , regard should be had to:
1. complexity length and difficulty
2. ability, experience and seniority
3. expenses incurred
86
you may refuse to accept instructions if instructions were under a
conditional fee arrangement what damages based agreement.
87
What should you do if you think your client is a credit risk?
Will you believe client is a credit risk, consider the alternatives, including Weather this credit risk could be mitigated , seeking payment in advance.
88
What duty to act in the best interests of each client (CD2) , to provide a competent standard of work and service to each client (CD7 )and to keep the affairs of each client confidential (CD6 )includes:
1. promoting fearlessly and buy all proper and lawful means the clients best interests
2. without regard to your own interests or to any consequences to you
3. without regard to the consequences to any other person
4. you must not permit your professional client, employer or any other person to limit your discretion as to how the interest of the client can best be served ; and
5. you must protect the confidentiality of each client
89
You may only accept instructions to act for more than one client if
if you are able to act in the best interests of each client as if that client were your only client (CD2)
90
CD7 requires a competent standard of work and also a competent standard of service to your client . a competent standard of work and service also includes:
1. treating each client with courtesy and consideration ; and
2. seeking to advise your client, in terms they understand ; and
3. taking all reasonable steps to avoid incurring unnecessary expense ; and
4. reading your instructions promptly
91
you should keep your professional knowledge and skills up to date, regularly take part in
professional development and educational activities
92
A BSB entity or manager should ensure work is allocated appropriately with
appropriate knowledge and expertise
93
– you should do what you reasonably can to ensure that your client understands
understands the process and what to expect from it and from you . Avoid any unnecessary distress for your client especially a vulnerable client
94
your duty of confidentiality is subject to an exception
is required or permitted by law. Here disclosure would not amount to a breach of CD6. In other cases disclosure is only allowed when your client gives informed consent.
95
You duty may require you to advise your client they should be represented by:
1. a different advocate or legal representative
2. more than one advocate or legal representative
3. fewer advocates or legal representatives
4. different solicitors
96
where you act on a public access basis, you must consider
whether solicitors should be instructed.
97
if you consider that your professional client, another solicitor or intermediary, another barrister, or other person acting on behalf of your client has been negligent, you should
advise the client.
98
Have you supply, offer, legal services, you must not mislead , any person to whom you supply, or offer, legal services about:
1. the nature and scope of the legal services
2. terms , who will carry out the work on the basis of charging
3. who is legally responsible for the provision of services
4. whether you're entitled to supply those services
5. extent to which you are covered by insurance against claims for professional negligence
99
What breaches CD 2 and CD5?
If there is a lack of clarity as to whether services are regulated, who is supplying them, on what terms, and what redress clients have and against whom if things go wrong this breaches CD2 and CD5.
**EXAMPLE:** Clients may be misled if self employed pastors were to share premises with solicitors without making sufficiently clear to clients that they remain separate and independent from one another and are not responsible for one another's work .
100
It is necessary to make clear to clients that any entity established as a “ProcureCo....
is not able to supply it reserved legal activities and is not subject to regulation by the bar Standards Board.
101
- Inform your professional client to enable appropriate steps to be taken to protect the client's interest if:
1. you will not be able to carry out instructions within the time requested , over in a reasonable time after receipt of instructions; or
2. you may not be able to undertake the instructions
102
Exercise your professional judgment in deciding which hearing is most important to attend. consider your duty to act in the best interests of each client, in which of your clients is likely to be most prejudiced by alternative representative being arranged at short notice. Take particular care of vulnerable clients. Consider:
1. the complexity and difficulty
2. length of time on case
3. amount of work completed
4. access to justice considerations an impact on client
103
You are personally responsible for their own conduct and for your professional work. You must do this notwithstanding...
the views of your client, professional client, employer or other person.
104
you are responsible for the service provided by all those who represent you, including clerks.
What about contracts restricting liability?
The barrister can contract stating not any civil liability for services provided lies with that individual. However that barrister may be liable with the BSB.
105
* **_When barrister must not accept instructions rule rC21 and guidance gC69-74_**
Rc21 - you must not accept instructions to act if:
1. you are not able to fulfil your obligation to act in the best interest of the prospective client ;
2. conflict of interest between you and then professional client ;
3. conflict of interest between the prospective client and one or more of your former or existing clients, unless all have agreed to you acting
4. real risk information confidential to another client may be relevant to the matter
5. your instructions seek to limit your ordinary authority or discretion in the conduct of proceedings in court;
6. your instructions require you to act otherwise in accordance with law or provisions of the Handbook
7. if you do not have enough experience
8. not enough time , unless it would nevertheless be in the clients best interest
9. cannot maintain independence
106
Where there is a conflict of interest between existing clients and a prospective client you may be entitled to accept instructions where
you have fully disclosed this and they have given consent, and you were acting in the best interests of each client.
107
where instructions are delivered so late that no suitable, competent advocate would have adequate time to prepare, you...
you are not required to refuse instructions as it will be in the clients best interest for you to accept.
108
When you first accept instructions to act in a matter:
you must:
1. Confirm in writing acceptance, terms, including the basis of charging
2. Where instructions are from a professional client, confirmation must be sent to the professional client .
3. Where instructions are from a client, confirmation must be sent to the client.
4. You must ensure that there is consent from clients to disclose and give control of files to the bar Standards Board or its agents
109
You may cease to act and return instructions if:
1. professional conduct is being called into question
2. client consent
3. you are self employed barrister and
1. despite reasonable efforts, a hearing becomes fixed for a date that you are unavailable
2. injury, illness, pregnancy, childbirth
3. you attend jury service
4. you do not receive payment in accordance with the terms agreed, but you must give reasonable notice requiring the non-payment to be remedied, giving advice about the consequences if not
5. you become aware of confidential information of another person which relate to the matter from which you instructed
6. some substantial reason for doing so
110
where there is a referral basis and your professional client withdraws, you are
no longer instructed and cannot continue to act unless appointed by the court post up you are not bound by the cab rank rule if appointed by the court. Here referral basis means we're professional client instructs a BSB authorised individual to provide legal services.
111
Where there is a fundamental change the basis of remuneration, you:
treat such a change as though your original instructions have been withdrawn and replaced by a new offer. Accordingly:
1. decide whether you are blind to accept the new instructions
2. if so , you must do so
3. if not , you may decline
4. if you decline to accept the new instructions , do you are not regarded as returning your instructions nor ceasing to act.
You must not:
1. Cease to act will return instructions without either;
1. obtaining your clients consent;
2. clearly explaining the reasons for doing so; or
2. return instructions to another person without the consent of your client or your professional client
112
he must not withhold your services or permit your services to be withheld because of:
1. Nature of case is objectionable
2. Conduct, Opinions or beliefs
3. financial support
113
**cab rank rule.** If you receive instructions from a professional client and are:
and
1. self-employed barrister
2. authorised individual working within a BSB entity
3. a BSB entity
and the instructions are appropriate , you must , accept the instructions come on irrespective of:
1. identity of client
2. nature case
3. financial means
4. belief or opinion
114
You must:
**Promptly** provide information to the BSB...
* and notify any material changes in information, whether relates to you or not.
115
You must register within X days if you undertake work in the Youth Court
28 days
116
Where you are required to report serious misconduct by others and legal privilege applies, this will
override the requirement to report serious misconduct by another. But the BSB may service notice for production of the documents.
117
You must **report promptly** to the BSB if:
1. Charged with an indictable offence
2. Convicted, or accept a caution, for any criminal offence, other than a minor offence
3. You are subject to a disciplinary proceeding
4. Manager of regulated entity subject of an intervention by the approved regulator of that body
5. You are registered European lawyer; and
1. Investigation of your conduct is commenced by your home regulator
2. Finding of professional misconduct made by home regulator
3. Authorisation in home state to pursue professional activities is withdrawn or suspected
4. Charged with a disciplinary offence
6. Any of the following occurs:
1. Bankruptcy proceedings initiated
2. Bankruptcy order
3. Administration proceedings initiated
7. Committed serious misconduct
8. Authorised to practise by another approved regulator.
118
Where you have committed **serious misconduct,** you should
take all reasonable steps to mitigate the effects.
119
Subject to your duty to keep affairs of client confidential, if you have ...
**reasonable grounds** to believe that there has been serious misconduct you must report it.
120
When thinkning about making a report,
You must never make, threaten, a report without
a genuine and reasonably held belief of reasonable grounds of serious misconduct.
121
You are **not under a duty to report serious misconduct if:**
1. The serious misconduct is in the public domain and circumstances is that you reasonably consider it would have come to the attention of the BSB; or
2. Person has already been reported
3. Information which led you to become aware of serious misconduct is subject to legal privilege
4. Aware of serious misconduct due to work on a Bar Council advice line.
You must not victimise anyone for making in good faith report.
122
**Serious misconduct includes:**
1. Dishonesty (CD3)
2. Assault or harassment (CD3, CD5, CD8)
3. Seeking to gain access without consent to instructions or confidential information to opposing party’s case (CD3 and CD5)
4. Seeking to gain access, without consent to confidential information relating to another member of chambers (CD 3 and CD5)
5. Encouraging a witness to give untruthful/misleading evidence (CD 1 and CD3)
6. Knowingly or recklessly misleading the court or an opponent (CD1 and CD3)
7. Being drunk, or under influence of drugs *in court* (CD2, CD7)
8. Failure of a barrister to report promptly above
9. A breach by a barrister, for example, reporting or threatening to report, another person
10. Conduct that poses a serious risk to the public
123
If you consider there to be serious misconduct, the consider the circumstances:
1. Whether person’s instructions or confidential matters might have a bearing on the assessment of their conduct
2. Person has been offered an opportunity to explain their conduct, if not, why
3. Any explanation which could be offered
4. Whether matter has been raised in litigation, if not, why not.
124
Duty to report arises if
you have reasonable grounds to believe there has been serious misconduct.
125
Exceptions to the general requirement to report serious misconduct might be because
because it is not in the public interest for every BSB regulated and unregistered barrister to have an obligation to report such serious misconduct.
126
What is the work on the Bar Council advice line?
* Dealing with queries
* Providing advice
The relevant advice lines are:
1. Ethical queries helpline
2. Equality and diversity helpline
3. Remuneration helpline
4. Pupillage helpline.
127
Misconduct falling short of serious misconduct should be
reported to your HOLP so they can keep record of non-compliance.
128
You must permit the Bar Council, or BSB reasonable access to inspect:
1. Premises where you provide legal services
2. Any documents or records
The Bar Council, BSB will be entitled to take copies.
129
You must give the Legal Ombudsman all
reasonable assistance requested of you, in connection with investigation, consideration and determination of complaints.
130
Where you are aware that you, or a BSB entity which you work will cease to practise, effect the orderly wind down, including:
* Informing the BSB, providing a contact address
* Notifying the clients
* Providing information to the BSB.
