Unit 2 Flashcards
What should clients know when they receive legal services from unregistered barristers?
oC34 says that they should be aware that unregistered barristers are not subject to the same regulatory safeguards that would apply if they instructed a practising barrister.
What do unregistered barristers have to do before supplying legal services to inexperienced clients and why? Also state who counts as an inexperienced client.
They must explain to the client that:
- They are not acting as a barrister;
- They are not subject to those parts of the Code of Conduct and other provisions of this Handbook which apply only to BSB authorised persons;
- The BSB will only consider reports about them which concern the Core Duties or those parts of the Code of Conduct and other provisions of this Handbook which apply to them;
- If they are not covered by professional indemnity insurance, that they are not so covered;
- In respect of any legal advice you provide, there is a substantial risk that they will not be able to rely on legal professional privilege.
- Explain that the client will not be able to complain to the Legal Ombudsman.
They need to get written confirmation from the client that they have given this explanation.
Why? Because one of the objectives of the handbook is that inexperienced clients should be aware that unregistered barristers are not subject to the same regulatory safeguards that would apply if they instructed a practising barrister.
Inexperienced client = includes any individual or other person who would, if the barrister were a BSB authorised person, have a right to bring a complaint pursuant to the Legal Ombudsman Scheme Rules.
Who has a right to complain to the Legal Ombudsman and why does it matter for our purposes?
Matters because these people count as ‘inexperienced clients’ for the purpose of determining what unregistered barristers have to do before providing legal services to them.
These people are:
1. Individuals
2. a business or enterprise that was a micro-enterprise within the meaning of Article 1 and Article 2(1) and (3) of the Annex to Commission Recommendation 2003/361/EC (broadly a business or enterprise with fewer than 10 employees and turnover or assets not exceeding €2 million), when it referred the complaint to you; or
3. a charity with an annual income net of tax of less than £1 million at the time at which the complainant refers the complaint to you; or
4. a club, association or organisation, the affairs of which are managed by its members or a committee of its members, with an annual income net of tax of less than £1 million at the time at which the complainant refers the complaint to you; or
5. a trustee of a trust with an asset value of less than £1 million at the time at which the complainant refers the complaint to you; or
6. a personal representative or beneficiary of the estate of a person who, before they died, had not referred the complaint to the Legal Ombudsman.
In what circumstances do unregistered barristers not have to provide the information set out in the Handbook (rC144) to inexperienced clients? What should unregistered barristers do in those cases instead?
If they supply legal services:
- as an employee or manager of a regulated entity;
- as an employee or manager of a body subject to regulation by a professional body or regulator;
- as provided for in Section S.B9 (Legal Advice Centres);
- pursuant to an authorisation that you have obtained from another approved regulator; or
- in accordance with Rules S13 and S14.
There is guidance on the BSB website about the kind of disclosure unregistered barristers need to make in cases in which the rule in the Handbook does not apply. Unregistered barristers should comply with that instead in those cases.
Are you permitted to carry on a reserved legal activity if you are not entitled to do so under the LSA?
No
Can you permit a third party who is not authorised to provide reserved legal activities to provide such reserved legal activities on your behalf?
No
Under what circumstances are you not entitled to practise as a barrister, a registered European lawyer or a BSB entity and you are also not considered to be authorised by the BSB to carry on any reserved legal activity?
If:
- You are an individual and do not have a practising certificate; or
- Your are an entity and you have not been authorised or licensed to provide reserved legal activities in accordance with Section 3.E.
For the purposes of the Handbook, what counts as ‘practising as a barrister’?
- You are supplying legal services and
- One of the following applies:
a. you are an individual and you hold a practising certificate ; or
b. you hold yourself out as a barrister or a registered European lawyer (as appropriate) or
c. you are an entity and you have been authorised or licensed to provide reserved legal activities in accordance with Section 3.E; or
d. you act as a manager of, or have an ownership interest in, an authorised (non-BSB) body and as such you are required by the rules of that body’s Approved Regulator to hold a practising certificate issued by the Bar Standards Board (as the case may be).
Does making an offer to supply legal services amount to supplying legal services?
Yes
Does a pupil who does not have a provisional practicing certificate and who accepts a noting brief with permission of their pupil supervisor, head of chambers or HOLP ‘supply legal services’?
No
In what capacities are you entitled to carry on reserved legal activities or (the rule says ‘or’ but it should probably say ‘and’) supply other legal services?
- Self-employed barrister
- BSB entity
- Manager of a BSB entity or employed barrister (BSB entity)
- Manager of an authorised (non-BSB) body or employed barrister (authorised non-BSB body)
- Employed barrister (non authorised body)
- Registered European lawyer in any of the above capacities
If you carry out reserved legal activities in one of the capacities that entitles you to do so, are other legal services you carry out (even if unreserved) subject to regulation by the BSB?
Yes – if you carry those out in that same capacity
Can you practice/provide legal services (reserved or unreserved) in more than one of the capacities that entitles you to carry out a reserved legal activity?
Yes, but only if:
- You have obtained an amended practicing certificate that recognises the capacities in respect of which you are intending to practise; and
- having agreed with each employer or regulated entity with which you are involved a protocol that enables you to avoid or resolve any conflict of interests or duties arising from your practice and/or involvement in those capacities,
and provided always that you do not work in more than one capacity in relation to the same case or issue for the same client, at the same time.
Can pupils supply legal services or exercise any rights that they have by reason of being a barrister?
Yes, if:
- They have a provisional practising certificate; and
- You have the permission of your pupil supervisor, head of chambers or HOLP (as appropriate)
What special rule applies to barristers of less than 3 years standing?
They can only supply legal services, exercise any right of audience or conduct litigation if their principal place of practice is either:
- A chambers or annex of chambers; or
- An office of an organisation
At which place there is a relevant qualified person who is readily available to provide guidance.
If you are supplying legal services to the public and you are a barrister of less than 3 years standing, who counts as a ‘qualified person’ that is available to give you guidance?
They must:
- Have been entitled to practise and have practised as a barrister (pupillage doesn’t count!) or as a person authorised by another Approved Regulator for a period (which need not have been as a person authorised by the same Approved Regulator) for at least six years in the previous eight years; and
- for the previous two years have made such practice their primary occupation; and
- are not acting as a qualified person in relation to more than two other people; and
- has not been designated by the Bar Standards Board as unsuitable to be a qualified person.
If you exercising a right of audience and you are a barrister of less than 3 years standing, who counts as a ‘qualified person’ that is available to give you guidance?
They must:
- Have been entitled to practise and have practised as a barrister (pupillage doesn’t count!) or as a person authorised by another Approved Regulator for a period (which need not have been as a person authorised by the same Approved Regulator) for at least six years in the previous eight years; and
- for the previous two years:
a. have made such practice their primary occupation; and
b. have been entitled to exercise a right of audience before every court in relation to all proceedings; and - are not acting as a qualified person in relation to more than two other people; and
- have not been designated by the Bar Standards Board as unsuitable to be a qualified person.
If you exercising a right to conduct litigation and you are a barrister of less than 3 years standing, who counts as a ‘qualified person’ that is available to give you guidance?
They must
- have been entitled to practise and have practised as a barrister (pupillage doesn’t count!) or as a person authorised by another Approved Regulator for a period (which need not have been as a person authorised by the same Approved Regulator) of at least six years in the previous eight years; and
- for the previous two years have made such practice their primary occupation; and
- are entitled to conduct litigation before every court in relation to all proceedings; and
- are not acting as a qualified person in relation to more than two other people; and
- have not been designated by the Bar Standards Board as unsuitable to be a qualified person.
What is necessary before a self-employed barrister (whether acting for a fee or not) can supply legal services?
They must have been appoint or instructed by the court or instructed:
- By a professional client; or
- By a licensed access client, in which case the barrister must comply with the licensed access rules; or
- By or on behalf of any other client, provided that:
a. The matter is public access instructions and: (i) they are entitled to provide public access work and the instructions are relevant to such entitlement; and (ii) they have notified the BSB that they are willing to accept instructions from lay clients; and (iii) that they comply with public access rules; or
b. The matter relates to the conduct of litigation and: (i) they have a litigation extension to their practising certificate; and (ii) they have notified the BSB that they are willing to accept instructions from lay clients.
Are self-employed barristers permitted to undertake the management, administration or general conduct of a client’s affairs?
No, unless the work in question is foreign work which they perform at or from an office outside England and Wales which they have established or joined primarily for the purposes of carrying out that particular foreign work or foreign work in general.
To which persons can a manager of a BSB entity or an employed barrister (BSB entity) supply legal services?
- The BSB entity; or
- any employee, director, or company secretary of the BSB entity in a matter arising out of or relating to that person’s employment;
- any client of the BSB entity;
- if you supply legal services at a Legal Advice Centre, clients of the Legal Advice Centre; or
- if you supply legal services free of charge, members of the public.
Are managers of a BSB entity or employed barristers (BSB entity) permitted to undertake the management, administration or general conduct of a client’s affairs?
No – same foreign work exception applies
State the rule about not misleading the client where you are supplying or offering to supply legal services.
If you supply, or offer to supply, legal services, you must not mislead, or cause or permit to be misled, any person to whom you supply, or offer to supply, legal services about:
- the nature and scope of the legal services which you are offering or agreeing to supply;
- the terms on which the legal services will be supplied, who will carry out the work and the basis of charging;
- who is legally responsible for the provision of the services;
- whether you are entitled to supply those services and the extent to which you are regulated when providing those services and by whom; or
- the extent to which you are covered by insurance against claims for professional negligence.
List the three examples of what may count as misleading a client for the purposes of the rule against misleading that we are meant to know.
- Applicable to everyone: Knowingly or recklessly publishing advertising material which is inaccurate or likely to mislead could also result in you being in breach of Rule rC19 (rule against misleading). You should be particularly careful about making comparisons with other persons as these may often be regarded as misleading.
- Unregistered barristers only: If you are an unregistered barrister, you would breach Rule rC19 if you misled your client into thinking that you were providing legal services to them as a barrister or that you were subject to the same regulation as a practising barrister. You would also breach the rule if you implied that you were covered by insurance if you were not, or if you suggested that your clients could seek a remedy from the Bar Standards Board or the Legal Ombudsman if they were dissatisfied with the services you provided.
- Pupils: if you are a pupil, you should not hold yourself out as a member of chambers or permit your name to appear as such. You should ensure the client understands your status.
What is the definition of ‘practicing barrister’?
A barrister (i.e. someone who has been called to the bar) who is supplying legal services and holds a practising certificate.
What is an “unregistered barrister”?
Barristers who do not have a practicing certificate.
Should the term “non-practicing barrister” still be used?
No - it can cause confusion since some barristers without practising certificates do provide legal services and are, in effect, practising as lawyers.
Do any of the Rules/Duties apply to unregistered barristers?
Yes – some do even if they don’t provide legal services. If they provide legal services, all the Core Duties apply and they have a responsibility not to mislead anyone about their status.
Duties and rules that apply to unreg barristers at all times:
- Core duties 5 (trust + confidence) and 9 (cooperation with regulators) apply at all times.
- 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;
- rC64-70: 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.
Duties and rules that apply only when unreg barristers are providing legal services:
- All core duties.
- rrC4-5: duty to client is subject to duty to court, duty to court does not require you to breach confidentiality.
- rC19: duty not to mislead clients [can’t use the title barrister as an unreg barrister in supplying/ offering legal services]
- rC144-145: rules relating to info which unreg barristers must give to clients. (and related guidance!)
Can barristers without practicing certificates provide legal services that are reserved legal activities?
No – this is a criminal offence
Which Core Duties apply to unregistered barristers at all times and when do the other Core Duties apply?
At all times:
- 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.
- CD9: You must be open and co-operative with your regulators.
The others apply when unregistered barristers provide legal services.
What is the main outcome that is relevant in relation to unregistered barristers?
oC34: Clients who receive legal services from unregistered barristers are aware that such unregistered barristers are not subject to the same regulatory safeguards that would apply if they instructed a practising barrister.
What are the reserved legal activities that are relevant for our purposes?
- the exercise of a right of audience
- the conduct of litigation
- reserved instrument activities
- probate activities
- notarial activities
- the administration of oaths
What is and what is not ‘conduct of litigation?
Is:
- issuing of proceedings before any court in E&W (incl. filing CF and PoC, making arrangements for service of reply and defence)
- commencement, prosecution, and defence of such proceedings
- performance of any ancillary functions in relation to such proceedings (i.e. any formal steps required in the conduct of litigation)
Is not:
- conducting correspondence on behalf of clients
- lodging documents for hearings
- skeleton arguments
- covering applications to fix trial dates
- court orders
- discharging a duty or a courtesy to the court
- signing a statement of truth
- instructing expert witnesses on behalf of a lay client
Can barristers conduct litigation?
No - only solicitors are authorised to conduct litigation.
Unless barristers are authorised by the BSB to do so or otherwise entitled to by virtue of other legislation
Is advocacy a reserved legal activity?
Not unless it involves the exercise of a right of audience. Thus, advocacy before an arbitrator or other tribunal where rights of audience are not required is not a reserved legal activity.
Are there circumstances in which an unregistered barrister may be authorised to carry out reserved legal activities?
Yes – if they are a solicitor or otherwise dual qualified they may be authorised to carry out some reserved legal activities.
Can unregistered barristers provide legal services that are not reserved legal services?
Yes
What does the term ‘legal services’ include?
- Legal advice
- Representation
- Drafting or settling any statement of case, witness statement, affidavit or other legal document.
What does ‘legal services’ not include?
- sitting as a judge or arbitrator or acting as a mediator;
- lecturing in or teaching law or writing or editing law books articles or reports;
- examining newspapers, periodicals, books, scripts and other publications for libel, breach of copyright, contempt of court and the like;
- communicating to or in the press or other media;
- giving advice on legal matters free to a friend or relative or acting as unpaid or honorary legal adviser to any charitable benevolent or philanthropic institution;
- in relation to a barrister who is a non-executive director of a company or a trustee or governor of a charitable benevolent or philanthropic institution or a trustee of any private trust, giving to the other directors trustees or governors the benefit of his learning and experience on matters of general legal principle applicable to the affairs of the company institution or trust;
- early neutral evaluation, expert determination and adjudications
What else must unregistered barristers not provide in addition to reserved legal services?
Immigration advice and services unless authorised to do so by the Office of the Immigration Services Commissioner (OISC).
Immigration work is not a reserved legal activity under the Legal Services Act 2007, but it is regulated under another statute. Barristers with a practising certificate are entitled to do immigration work but unregistered barristers are not, unless authorised by OISC.
Why can you not hold yourself out to be a barrister when providing legal services if you are an unregistered barrister?
Because that would amount to ‘practicing as a barrister’ which you are not allowed to do.
What can an unregistered barrister not do because they cannot hold themselves out as a barrister when providing legal services?
When providing legal services they cannot use the term ‘barrister’ or otherwise convey the impression that they are practicing as a barrister.
What are the examples listed in the ‘unregistered barristers’ guidance of ‘holding yourself out to be a barrister’?
- Describing oneself as a barrister in any printed material used in connection with the provision of legal services: in particular in advertising or publicity, on a card or letterhead, or on premises.
- Describing oneself as a barrister to clients or prospective clients.
- Describing oneself to clients or prospective clients as a non-practising barrister or barrister-at-law (titles which have been allowed in the past but not in recent years).
- Indicating to opposing parties or their representatives (e.g. in correspondence) that one is a barrister.
- Describing oneself as a barrister or (when supplying services to the public) as “counsel”, wearing robes, or sitting in a place reserved for counsel, in court
- Using other descriptions in connection with supplying, or offering to supply, legal services which imply that the individual is a barrister (e.g. membership of an Inn of Court)
When does the restriction on holding out apply and when does it not apply?
Only applies when providing legal services. If you have been called to the Bar, there is no restriction on referring to yourself as a barrister if it is not in connection with the supply of legal services.
What is an example that we’ve been given that does not amount to holding yourself out to be a barrister?
For a BVC or BPTC (nowadays, the bar course) graduate to mention that he/she is a holder of this qualification, is not considered as holding out as a barrister.
Which titles can an unregistered barrister use on a business card/letterhead/website etc.? Which titles can’t they use?
N.B. the restrictions only apply when providing legal services but there may be situations in which you are not generally providing legal services to someone and then you do on one or some occasions. In such circumstances you must make sure that there is no confusion because the overarching concern is that the client is not misled where legal services are being provided.
Titles that you cannot use:
- Barrister
- Unregistered barrister
- Non-practicing barrister
- Counsel
Titles that you can use:
- Lawyer
- Legal adviser
- If you provide legal services only to your employer you can use titles commonly used in companies, e.g. legal counsel, general counsel, corporate counsel
- If you work for an employer which is an authorised person under the Legal Services Act you can use “of Counsel”
- In your CV you can say that you are qualified as a barrister
- You can say that you have done the bar course/BVC/BPTC
- If you are a KC you can continue to use the title but if you are providing legal services you need to explain that you are not practising as a barrister
Why do special rules apply to unregistered barristers who provide legal services?
At first glance it might seem disproportionate because anyone can provide legal services if they are not reserved.
The reason is that the lay client might not understand the difference between an unregistered barrister and a barrister holding a practicing certificate. The differences are that barristers with practicing certificates:
- Have insurance and
- Have to keep their professional knowledge up-to-date
Some of their clients also have a right to complain to the Legal Ombudsman.
Clients are likely to assume that these safeguards also apply to unregistered barristers.
Which rules and duties apply to unregistered barristers providing legal services?
- All the Core Duties
- Rules C4 and C5 - your duty to your client is subject to your duty to the court, and your duty to the court does not require you to breach your duty to keep the affairs of your client confidential
- Rule C19 - not misleading clients
- Rules C144 and 145 - rules relating to information which unregistered barristers must give to inexperienced clients
How does rC19 (not misleading clients) work in relation to unregistered barristers?
- Rule against holding out
- You must not mislead clients or employers about: (i) your status; (ii) the extent to which you are regulated; (iii) the services you can supply; and (iv) your insurance cover
Which information does an unregistered barrister have to provide if they provide legal services only to their employer?
You may describe yourself orally as an unregistered barrister or a barrister without a practising certificate, to your employer, colleagues and any third parties with whom you deal and you should explain what this means if there is any risk of anyone being misled. You may also state on a CV that you have been called to the Bar.
Which information does an unregistered barrister have to provide if they work for a regulated professional body and provide services to clients?
E.g. unregistered barristers working for solicitors’ firms, other bodies which are authorised under the Legal Services Act such as licensed conveyancers, or other regulated professional firms such as accountants or patent agents.
You may describe yourself to your employer and colleagues as an unregistered barrister or a barrister without a practising certificate and you should explain what this means if there is any risk of anyone being misled. You should not describe yourself as a barrister or unregistered barrister to clients of your employer but if you are asked whether you are a barrister or if it becomes known that you are, you may say that you are an unregistered barrister and explain what this means. You should seek to ensure that any publicity put out by your employer does not describe you as a barrister. You must also comply with any regulatory requirements of the professional body which regulates your employer.
Which information does an unregistered barrister have to provide if they provide unreserved legal services to experienced business clients?
E.g. unregistered barristers dealing with larger businesses or firms which can be expected to make informed judgments about sourcing legal services.
You may not advertise or refer to yourself as a barrister but in tendering for work you may state to a prospective client that you are an unregistered barrister provided that you explain to the client what this means. If you are in any doubt, a written statement should be provided which should include the following information:
- that you are not acting as a barrister
- that you are not subject to certain Conduct Rules applying to practising barristers and the Bar Standards Board cannot consider complaints against you in relation to these rules but only in relation to the rules which do apply to you
- if you are not covered by professional indemnity insurance you must say so
- that your client has no right to complain to the Legal Ombudsman.
Whilst we strongly advise all barristers providing legal services to carry professional indemnity insurance, if you decide not to insure then you should so advise clients or prospective clients.
You must also explain to clients that in respect of any legal advice you provide, there is a substantial risk that they will not be able to rely on legal advice privilege.
Which information does an unregistered barrister have to provide if they provide unreserved legal services to inexperienced clients, such as individuals, small companies and charities? Who counts as an inexperienced client? What do you do if you are in doubt as to whether a client is inexperienced? What does the client need to do in response to the provision of the information? When do these requirements not apply?
Inexperienced clients = including individuals and small organisations which would be entitled under the Legal Ombudsman Scheme Rules to make a complaint to the Legal Ombudsman if you were a practising barrister. Some slightly larger organisations that only occasionally require legal services may also be inexperienced.
Because an unregistered barrister is not a practicing barrister, inexperienced clients do not have a right to redress under the Ombudsman scheme. So it’s really important to make the position clear.
These clients should be given the following information in writing:
- that you are not acting as a barrister
- that you are not subject to certain Conduct Rules applying to practising barristers and the Bar Standards Board cannot consider complaints against you in relation to these rules but only in relation to the rules which do apply to you
- if you are not covered by professional indemnity insurance you must say so
- that your client has no right to complain to the Legal Ombudsman
You should also provide this information in in writing to any clients if you’re not sure if they are inexperienced or not.
The client must confirm in writing that they have received this explanation.
These requirements do not apply to legal services provided when working for a Legal Advice Centre as defined in the Handbook, or if you are authorised to provide reserved legal activities by another approved regulator.
Which information does an unregistered barrister have to provide if they are employed by an unregulated organisation which provides unreserved legal services to the public?
The same requirements apply as if you were self-employed depending on whether the client is an experienced large business or an inexperienced client such as an individual or small business. It is your responsibility, and not your employer’s, to see that the relevant information is given and you should advise your employer of the rules so that they do not hold you out as a barrister.
Barristers who do not hold practising certificates (including pupils in their non- practising period) are permitted to provide free legal advice to clients of a Legal Advice Centre, provided they do not hold themselves out as barristers and do not undertake or offer to undertake any reserved legal services.
Which information does an unregistered barrister have to provide if they are authorised to carry out legal services by another Approved Regulator?
If you are authorised by another approved regulator to carry on a reserved legal activity and currently permitted to practise by that approved regulator, you must not practise as a barrister and you are not eligible for a practising certificate (although you may apply to the BSB for a waiver from this rule, which may be granted subject to conditions to ensure that clients understand the capacity in which you are acting and the regulatory regime that applies in each case).
If you are practising as a person authorised by one of the other approved regulators, you may hold yourself out as a barrister in addition to your other qualification, provided that you comply with Rule S14. This rule states that if you hold yourself out as a barrister or a registered European lawyer then, when supplying legal services to any person or employer for the first time, you must inform them clearly in writing at the earliest opportunity that you are not practising as a barrister or a registered European lawyer.
Regulators that can authorise the carrying out of reserved legal activities: (1) the Solicitors Regulation Authority, (2) CILEx Regulation, (3) the Intellectual Property Regulation Board and (4) the Costs Lawyer Standards Board.
Can pupils supply legal services as a practising barrister?
Not in their non-practising period but they can accept a noting brief with permission of your pupil supervisor or head of Chambers.
What titles can pupil barristers use in their non-practising period?
Normally they can say ‘pupil barrister’. But if they provide pro bono advice, they should not describe themselves as a barrister or a pupil barrister and should follow the rules and guidance for unregistered barristers.
Can pupil barristers provide legal services in their practicing period?
Yes, if:
- They have a provisional practising certificate; and
- You have the permission of your pupil supervisor, head of chambers or HOLP (as appropriate)
What title can pupil barristers use in their practising period?
Once you have a provisional practicing certificate, you may provide legal services in accordance with Rule S19. You may describe yourself as a pupil barrister and you should ensure that the client understands your status.
Which Core Duties and which Conduct Rules apply to unregistered barristers at all times (i.e. even when they are not providing legal services)?
Core Duties:
- 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
- CD9: You must be open and co-operative with your regulators
Conduct Rules:
- Rule C3.5: You must ensure that your ability to act independently is not compromised
- Rule C8: Your duty not to do anything which could be seen to undermine your honesty, integrity and independence
- Rule C16: Your duty to your client is subject to your duty to the court, and your obligations to act with honesty and integrity, and to maintain your independence.
- Rules C64-70: Duties in relation to provision of information to the BSB and co-operation with the BSB. These duties include the duty to report serious misconduct by other barristers (see separate guidance).
State your core duty to the court (CD1)
CD1: You must observe your duty to the court in the administration of justice.
This is fleshed out in the rules in the following way: You owe a duty to the court to act with independence in the interests of justice.
What is special about your duty to the court?
It overrides any other core duty and any other inconsistent obligations that you may have (other than those under the criminal law).
What specific obligations does the core duty to the court include and when do these apply?
- You must not knowingly or recklessly mislead or attempt to mislead the court;
- You must not abuse your role as an advocate;
- You must take reasonable steps to avoid wasting the court’s time;
- You must take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions;
- You must ensure that your ability to act independently is not compromised.
These apply whether you are acting as an advocate or are otherwise involved in the conduct of litigation in whatever role.
What is the rule where your duty to keep the affairs of each client confidential conflicts with your duty to the court?
You are not required to act in breach of your duty of confidentiality.
What do you do about decisions or provisions that are adverse to the interests of your client?
You still have to draw the court’s attention to them, especially where the other side is not legally represented.
State your core duties to your client.
CD2: You must act in the best interests of each client.
CD6: You must keep the affairs of each client confidential.
CD7: You must provide a competent standard of work and service to each client.
What do you do where you don’t believe your clients version of events?
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 (or as you, on your client’s behalf, state them to be), 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.
State the three examples we need to know about how to deal with situations where you don’t believe your clients version of events/where you know them to be untrue.
- You are entitled and it may often be appropriate to draw to the witness’s attention other evidence which appears to conflict with what the witness is saying and you are entitled to indicate that a court may find a particular piece of evidence difficult to accept. But if the witness maintains that the evidence is true, it should be recorded in the witness statement and you will not be misleading the court if you call the witness to confirm their witness statement.
- Equally, there may be circumstances where you call a hostile witness whose evidence you are instructed is untrue. You will not be in breach of Rule rC6 if you make the position clear to the court.
- If your client were to tell you that they have committed the crime with which they were charged, 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. However, you would be misleading the court if you were to set up a positive case inconsistent with the confession, as for example by 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.
What should you do if there is a risk that you would mislead the court unless you disclose confidential information?
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.
State the two examples we’re given of how to deal with situations where not revealing confidential information might mislead the court.
- For example, if your client tells you that they have previous convictions of which the prosecution is not aware, you may not disclose this without their consent. However, in a case where mandatory sentences apply, the non-disclosure of the previous convictions will result in the court failing to pass the sentence that is required by law. In that 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. This will constrain what you can say in mitigation. For 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.
Comment from me: what this boils down to is –
- if there is a duty to disclose (e.g. because of mandatory minimum sentences of because there is a court order requiring disclosure) and your client say ‘no’, then you can’t continue to act
- if there isn’t a duty to disclose but non-disclosure is potentially misleading, then you can continue to act but you are constrained in what you can say (i.e. must not mislead)
What obligations does your duty not to abuse your role as an advocate include?
- You must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;
- 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;
- 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:
a. You have reasonable grounds for the allegation; and
b. The allegation is relevant to your client’s case or the credibility of a witness; and
c. Where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary. - 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.
