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Pupillage Ethics > Public Access Guidance > Flashcards

Public Access Guidance Flashcards

1
Q

What is public access?

A

the accepting of instructions directly from or on behalf of a member of public known as a lay client.

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2
Q

What must you do before accepting public access instructions?

A
  1. hold a full practising certificate
  2. have undertaken and completed a BSB approved training course
  3. notify the Bar Council of your intention to undertake such work
  4. have insurance cover as required by the Handbook.
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3
Q

What are the additional requirements for a barrister with less than 3 years standing who wants to undertake public access work

A
  1. been entitled to practise and have practised as a barrister or have been authorised to practise by another approved regulator for a period of at least 6 years in the previous 8 years.
  2. made such practice their primary occupation for the previous two years; and
  3. been entitled to exercise a right of audience before every court in relation to all proceedings
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4
Q

What are some examples go what work you may do for a public access client?

A
  1. advocacy
  2. drafting documents
  3. advising in writing or in conference
  4. representation in ADR
  5. negotiating on behalf of your client
  6. investigating and collecting evidence
  7. corresponding on behalf of your client
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5
Q

What is the first restriction in relation to public access work?

A

a barrister cannot conduct litigation on behalf of their client

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6
Q

What happens if you conduct litigation without authorisation?

A

you are in breach of the Handbook and committing a criminal offence under the Legal Services Act 2007

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7
Q

What is the definition of conducting litigation?

A
  1. the issuing of proceedings before any court in England and Wales
  2. the commencement, prosecution and defence of such proceedings; and
  3. the performance of any ancillary functions in relation to such proceedings.
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8
Q

What actions do the BSB say you should refuse to do if you are not authorised to conduct litigation?

A
  1. issuing proceedings or applications
  2. acknowledging service of proceedings
  3. giving your address as the address for service
  4. filing documents at court or serving documents on another party
  5. issuing notices of appeal.
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9
Q

What activities are permissible if you are not authorised to conduct litigation?

A
  1. lodging documents for hearings
  2. skeleton arguments
  3. covering applications to fix trial dates
  4. court orders
  5. discharging a duty or a courtesy to the court
  6. signing a statement of truth.
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10
Q

What are you restricted from doing by the Code of Conduct?

A

receiving or handling clients’ money, except as payment for fees. Or undertaking the general management, administration or conduct of affairs.

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11
Q

What is the Code of Conduct requirement before a barrister accepts a Public Access instruction?

A

“take such steps as are reasonably necessary to ensure that the client is able to make an informed decision about whether to apply for legal aid or whether to proceed with Public Access”

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12
Q

What is important for clients in relation to public funding

A

that they make informed choices about public funding.

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13
Q

When can you not accept Public Access instructions

A

if you form the view that it is either in the best interests of your client or in the interests of justice for the client to instruct a solicitor or other professional client.

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14
Q

What must you do in every case of public access

A

make your client aware at the outset that there may be circumstances in which you will have to recommend that a solicitor is instructed and that you will have to withdraw if that advice is not heeded.

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15
Q

What must you do in relation to the initial contact with the client.

A

keep a record of the date that instructions were received, the name of the client, the name of the case and any requirement of the client as to time limits.

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16
Q

What are some of the factors that could indicate a vulnerable client?

A
  1. gender
  2. race
  3. disability
  4. age
  5. pregnancy
  6. religion
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17
Q

what are other factors to consider as to the vulnerability of a client?

A
  1. limited access to financial resources
  2. illiteracy or low levels of literacy
  3. vulnerability or trauma arising from the matter at issue
  4. homelessness
  5. drug or alcohol dependency
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18
Q

What is the basis of the agreement between the client and barrister?

A

it is contractual

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19
Q

What does the contractual basis of agreement mean?

A
  1. the barrister is bound by the agreement and may be liable in contract for failure to perform
  2. it should be clear what is to be done under the contract, the charging rate and any other terms should be agreed
  3. the barrister will be able to sue for fees.
20
Q

What must the barrister inform his client about at the outset?

A

a warning that you are an independent practitioner and there may be occasions where a clash of professional commitments prevents you from carrying out an instruction.

21
Q

What must you be mindful of when not accepting an instruction?

A

that you must not withhold your services on the:
1. ground that the nature of the case is objectionable to you
2. ground that the conduct, opinions or belief of the prospective client are unacceptable to you or to any section of the public
3. ground relating to the source of any financial support which may properly be given to the prospective client in question.

22
Q

Does the cab rank rule apply to public access cases?

A

No, but you still must not discriminate in the way you accept or refuse public access instructions

23
Q

What additional reason to the usual ones must a barrister cease to act in a public access case?

A

where they have formed the view that it is in the interests of the client or justice for the client to instruct a solicitor or other professional client.

24
Q

If your decision to withdraw from a public access case, stems from handbook duties, will you be in breach of your professional duties?

A

no

25
Q

What should you do if you need to withdraw and because of the proximity pop the hearing the client may find it difficult to get a lawyer to take on the case?

A
  1. apply to the court for an adjournment if necessart
  2. drafting letters for the client to send to the court
  3. providing support g letter for the client
  4. where the matter is urgent, contacting solicitors who may be willing to take on the case.
26
Q

What is the BSB’s guidance on first tier complaints handling?

A
  1. ensure that the client is told about the procedure in the client care letter;
  2. deal with complaints promptly and according to that procedure as they arise; and
  3. inform the client that, if they are dissatisfied with the way in which the complaint has been handled, they may refer it to the Legal Ombudsman
27
Q

What must you notify public access clients about with regard to fees?

A

the work you have agreed to do and the fees which you propose to charge for that work.

28
Q

What rule prohibits barristers from handling client money?

A

rC73

29
Q

Is a fix fee paid in advance considered as handling client money

A

Np (gC106-107)

30
Q

Can barristers withhold paperwork until fees have been received?

A

Yes.

31
Q

Are you entitled to charge disbursements for public access clients, travel and accommodation expenses and photocopying.

A

yes

32
Q

What are the two options if there is a dispute about the amount charged to clients?

A
  1. the client can refuse to pay and the despite may have to be resolved by litigation
  2. the client can complain to the Legal Ombudsman if they consider you have provided inadequate legal services.
33
Q

What can the Legal Ombudsman do if there are complaints about the services provided by a barrister?

A

he can fine you and/or order that fees be repaid. He can also refer information to the BSB where the alleged conduct may amount to a breach of the Handbook

34
Q

What should you do if you form the view that there is a conflict of interest between the client and intermediary?

A

rC15 and rC17 require you to consider whether it would be in the client’s interest to instruct another professional.

35
Q

What obligations apply if you are approached by an intermediary?

A

you must satisfy yourself before accepting the case that it is appropriate to do so without a solicitor or other professional client as you would be under if you were approached by the client directly.

36
Q

Where should the client care letter be sent?

A

to the client’s home or, as appropriate, business address and not to the intermediary’s address

37
Q

What information do you need before accepting instructions through an intermediary?

A

the client’s address

38
Q

Can you receive or pay a referral fee to or from an intermediary?

A

No

39
Q

What must barristers using marketing services ensure?

A
  1. that they do not breach the prohibition on paying or receiving referral fees
  2. that they do not enter into terms which interfere with their duties to act independently and in the client’s bets interests
  3. they do not handle client money
  4. companies not authorised by a legal regulator are not providing reserved legal activities
  5. any marketing is not misleading
  6. clients are not confused about who is responsible for the service provided and the service operates as described.
40
Q

What records must you keep?

A
  1. the initial contact with the client
  2. the work you have been asked to do
  3. the dates of conferences and notes of advice given
  4. records of telephone conversations and advice given
  5. significant changes to instructions; and
  6. hearings attended and advice given.
41
Q

How long should your records be retained for?

A

at least 7 years

42
Q

What would you be liable for if you fail to keep client documents in a secure place?

A

liable in negligence.

43
Q

How long do you need to keep any original, copies or a list of all the documents you received from your client?

A

at least 7 years.

44
Q

If you are instructed in public access and a solicitor is already instructed, what must you do?

A
  1. consider whether there is any reason why the solicitor needs to instruct you directly;
  2. be satisfied that the solicitor is aware that the client is instructing you
45
Q

If a client comes to you for the advice on the conduct of a solicitor or for a second opinion, can you provide that advice?

A

Yes, but you cannot inform the solicitor without the client’s consent.

46
Q

If you suggest a solicitor, what are the conditions for a recommendation?

A
  1. you have reasonable grounds to believe that the solicitor is competent to do the work; and
  2. you receive no payment for the referral; and
  3. the solicitor is free to instruct another barrister.

Pupillage Ethics (24 decks)

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