Unit 1 Flashcards
What are the regulatory objectives of the BSB?
- Protecting and promoting the public interest
- Supporting the constitutional principles of the rule of law
- Improving access to justice
- Protecting and promoting the interests of consumers
- Promoting competition in the provision of the services
- Encouraging an independent, strong, diverse and effective legal profession
- Increasing public understanding of the citizen’s legal rights and duties; and
- Promoting and maintaining adherence to the following professional principles:
a. that authorised persons act with independence and integrity;
b. that authorised persons maintain proper standards of work;
c. that authorised persons act in the best interests of their clients;
d. that authorised persons comply with their duty to the court to act with independence in the interests of justice; and
e. that the affairs of clients are kept confidential.
What does the handbook do?
It sets out the standards that the BSB requires the persons it regulates to comply with in order for it to meet its regulatory objectives.
Which categories of persons have to meet the mandatory standards set by the core duties?
All BSB regulated persons and unregistered barristers.
What do the Outcomes do?
They explain the reasons for the regulatory scheme and what it is designed to achieve.
Are the outcomes mandatory?
No - but they are factors which BSB regulated persons or unregistered barristers should have in mind when considering how the Core Duties
Which purposes do the Rules serve?
- They supplement the Core Duties and are mandatory.
- The Rules contained within “Scope of Practice Rules” set out the requirements for authorisation and the scope of practice for different kinds of BSB authorised person and include some rules relevant to unregistered barristers . These rules are mandatory.
- The rest of Part 3 and Part 4 set out the requirements which must be met by a person before they may undertake a specific role within those regulated by the Bar Standards Board.
Which core duties and conduct rules apply to unregistered barristers at all times? Which only apply when they are providing legal services?
At all times:
- Core Duties 5 (trust and confidence) and 9 (cooperation with regulators)
- rC3.5: you must ensure that your ability to act independently is not compromised
- rC8: duty not to do anything which could be seen to undermine your honesty, integrity and independence
- rC16: duty to your client is subject to your duty to the court to act honestly, and to maintain independence
- rrC64-70: duties in relation to the provision of information to the BSB and cooperation with the BSB. Includes the duty to report serious misconduct by other barristers.
When providing legal services:
- All core duties
- rrC4-5: duty to client subject to duty to court; duty to court does not require you to breach duty of client confidentiality
- rC19: duty not to mislead clients (e.g. not using title of barrister)
- rrC144-145: rules relating to information which unregistered barrister must give to inexperienced clients
Are the Rules exhaustive?
No
What purposes does Guidance serve?
- To assist in the interpretation and application of the Core Duties or Rules to which such Guidance relates.
- To provide examples of the types of conduct or behaviour that the Rules are intended to encourage or which would likely indicate compliance with the relevant Rule or, conversely, which may constitute non-compliance with the Rule to which such Guidance relates.
- To explain how the Rule applies to a particular type of person or unregistered barrister and how that particular person could comply with that Rule.
- To act as a signpost to other rules or to guidance on the Bar Standards Board website or elsewhere which may be relevant when considering the scope of the Rule.
- Part 3, to give further information about the process of applying for authorisation and about how the Bar Standards Board intends to exercise its discretionary powers in relation to the authorisation of entities.
What should we do where no specific Rule applies?
Refer to the Core Duties.
To whom does the Handbook apply?
- All barristers, including pupils and unregistered barristers
- European lawyers registered as such, but only in connection with professional work undertaken by them in England and Wales
- Bodies which have been authorised or licensed by the Bar Standards Board in accordance with Section 3.E of this Handbook (“BSB entities”);
- Individuals who are authorised to provide reserved legal activities by another Approved Regulator where such individuals are employed by a BSB authorised person (“authorised (non-BSB) individuals”);
- All managers of BSB entities;
- To the extent that this Handbook is expressed to apply to them in their capacity as such, owners of a BSB entity;
- Solely as regards provisions in this Handbook relating to disqualification from performing a relevant activity or relevant activities and not otherwise, any non-authorised individuals who are employed by a BSB authorised person; and
- Solely as regards Section 4.B of the Handbook, individuals who wish to be called to the Bar and to become qualified to practise as a barrister and authorised education and training organisations.
Nomenclature: persons within paragraphs 1 to 7 (with the exception of pupils without a provisional practising certificate, unregistered barristers and owners) are referred to as “BSB regulated persons” throughout this Handbook. For the purposes of Part 5 of the Handbook these persons (and those who are no longer BSB regulated persons or unregistered barristers but who were at the time when any conduct was complained of or reported) are referred to as “applicable persons”. For the avoidance of doubt, the Handbook continues to apply to those who are subject to suspension.
If you are a BSB authorised individual who is employed by or a manager of an authorised (non-BSB) body and is subject to the regulatory arrangements of the Approved Regulator of that body, and the requirements of that other Approved Regulator conflict with a provision within this Handbook, which set of rules apply (the Handbook or the requirements of the Approved Regulator)?
The requirements of the Approved Regulator.
If you are a pupil, under what circumstances will you be treated as an employee?
If you are:
- The pupil of an employed barrister (non-authorised body); or
- The pupil of a manager or employee of a BSB entity; or
- The pupil of a manager or employee of an authorised (non-BSB) body; or
- Spending a period of external training with a BSB entity or an authorised (non-BSB) body.
In those cases, you are treated as an employee of the barrister’s employer or the body concerned.
How does the Handbook apply to registered European lawyers?
- Applies only in connection with work undertaken in England and Wales.
- Where it applies it applies as if the lawyer were a self-employed barrister or an employed barrister (non- authorised body) or a manager or employee of an authorised (non BSB) body or a manager or employee of a BSB entity (as the case may be) depending on the way in which they practise.
If the general application rules conflict with the application rules specific to a particular section of the handbook, which ones apply?
The specific ones.
What is the Rule on personal responsibility?
rC20: Where you are a BSB authorised individual, you are personally responsible for your own conduct and for your professional work. You must use your own professional judgment in relation to those matters on which you are instructed and be able to justify your decisions and actions. You must do this notwithstanding the views of your client, professional client, employer or any other person.
To whom does the rule on personal responsibility apply?
To all BSB and non-BSB authorised individuals, including employed individuals (i.e. the fact that you are employed does not change that you are personally responsible for your conduct and work).
Can authorised persons outsource work?
Yes
If an authorised person has outsourced work, who is responsible for the work?
The authorised person remains personally responsible.
What is an authorised person’s responsibility in relation to persons that represent them in dealings with their clients?
They are responsible for these people (e.g. clerks or any other employees or agents).
What is the effect of a BSB entity contracting on the basis that any civil liability for the services provided by BSB regulated individuals lies with the BSB entity, rather than the individual?
It is possible to contract on this basis, but it does not affect the regulatory obligations of the individual (i.e. it only affects their civil liability).
To whom do the Conduct Rules apply?
- All regulated persons
- Only some apply to unregistered barristers (later flashcards deal with this).
To whom do the Core Duties apply?
To all regulated persons and unregistered barristers except where stated otherwise.
When do the Core Duties apply?
Usually when practicing or otherwise providing legal services. CD5 (trust and confidence in the profession) and CD9 (being open and cooperative with regulators) apply at all times.
When do the Conduct Rules apply?
When practicing or otherwise providing legal services. rC8 (honesty, integrity + not undermining public confidence in you), rC16 (duty to the client is subordinate to other duties) and rC64-rC70 (various duties to cooperate with regulators) apply at all times.
List the Core Duties
- CD1 You must observe your duty to the court in the administration of justice [CD1].
- CD2 You must act in the best interests of each client [CD2].
- CD3 You must act with honesty, and with integrity [CD3].
- CD4 You must maintain your independence [CD4].
- 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 [CD5].
- CD6 You must keep the affairs of each client confidential [CD6].
- CD7 You must provide a competent standard of work and service to each client [CD7]
- CD8 You must not discriminate unlawfully against any person [CD8].
- CD9 You must be open and co-operative with your regulators [CD9].
- CD10 You must take reasonable steps to manage your practice, or carry out your role within your practice, competently and in such a way as to achieve compliance with your legal and regulatory obligations [CD10].
Are the Core Duties ranked?
In general, no. However, CD1 (duty to the court) overrides any other core duties. There are also rules about the interaction of the duty to the court, client and independence (dealt with in other flashcards). Overall, a key point to remember is that usually your duty to your client will be overridden by other core duties (more on this in other flashcards).
What do you have to do if you become aware of a breach of a legal or regulatory obligation? Why do you have to do that?
Take all reasonable steps to mitigate the effects of any breach of those legal and regulatory obligations once you become aware of the same.
Why? -> It’s part of your duty to manage your practice in order to achieve compliance with legal and regulatory obligations (CD10).
What are the outcomes that the Handbook seeks to achieve in relation to the court/your core duty to the court?
- The court is able to rely on information provided to it by those conducting litigation and by advocates who appear before it.
- The proper administration of justice is served.
- The interests of clients are protected to the extent compatible with outcomes 1 and 2 (above) and the Core Duties.
- Both those who appear before the court and clients understand clearly the extent of the duties owed to the court by advocates and those conducting litigation and the circumstances in which duties owed to clients will be overridden by the duty owed to the court.
- The public has confidence in the administration of justice and in those who serve it.
Where the duty to uphold the reputation of the Bar and/or the duty to the court conflicts with the duty to the client and your own interests, what do you do?
The duty to uphold the reputation of the Bar and the duty to the court override your duty to act in your client’s best interest. You must also act against your own personal interests in such cases.
