Authorisation and scope of practice

Question 1

No practice without authorisation

Answer 1

You must not carry on any reserved legal activity unless you are entitled to do so under the Legal Services Act.

Question 2

Legal service or reserved legal activity?

Answer 2

• Legal services include providing legal advice, providing legal representation and drafting or settling any statement of case, witness statement, affidavit or other legal document.
• Unregistered barristers may provide legal services, but may not carry out reserved legal activities.
• Reserved legal activities: exercise of a right of audience (professional right to conduct advocacy in a court/tribunal), conduct of litigation (issuing, commencing and defending proceedings before any court - normally done by solicitors), reserved instrument activities (any activity which involves preparing an instrument relating to real or personal estate), probate activities, notarial activities, administration of oaths

Question 3

Practising certificates

Answer 3

• In order to provide legal services and/or carry out reserved legal activities as a barrister, you must have a valid practising certificate.
• If you are an individual and you do not have a practising certificate, you:
  (a) may not practice as a barrister
  (b) are not authorised to carry out any reserved legal activity

Question 4

Obtaining a full practising certificate

Answer 4

The key provisions are that you are eligible for a full practising certificate if:

(a) You have satisfactorily completed pupillage or have been exempted;
(b) Within the last five years you have:
(i) Held a practising certificate; or
(ii) Satisfactorily completed or been exempted from pupillage; or
(iii) Complied with training requirements imposed by the BSB.

Question 5

Obtaining a provisional practising certificate

Answer 5

• With a provisional certificate you have the same rights of audience as a fully qualified barrister, i.e. before every court in relation to any proceedings.
• If you don’t have a provisional certificate, you have no rights of audience as a pupil. You are however permitted to accept a noting brief with permission of your supervisor or head of chambers.

Question 6

Importance of instructions

Answer 6

• If you are a self-employed barrister and have a practising certificate (provisional or full), there are further restrictions on whether you can carry on a reserved legal activity or provide legal services.
• Self-employed barristers must:
  (a) Be instructed by the court or a professional client (solicitor) or licensed access client
  (b) If instructed directly by a member of the public, have complied with the public access rules and notified the BSB you are willing to accept public access instructions
  (c) If instructed to conduct litigation, have a litigation extension to your certificate and you have notified the BSB that you are willing to accept instructions from lay clients.

Question 7

Employed barristers

Answer 7

• Different scope of practice rules apply to employed barristers, e.g. those who work in house for a law firm, local government, or central government department. You need a practising certificate to carry on reserved legal activities, just like a self-employed barrister.
• The key provisions are that you may supply legal services to:
  (a) Your employer
  (b) Any employer, director or company secretary of your employer in a matter arising from that person’s employment
  (c) If you work for a public authority, another public authority with which they have arrangements to supply legal services
  (d) If you work for central government, any minister or officer of the crown
  (e) If you work for the Legal Aid Agency, members of the public
  (f) If you supply legal services free of charge, members of the public

Question 8

The cab rank rule

Answer 8

You are obliged to accept instructions in a case which are addressed specifically to you, unless certain exceptions apply.

Question 9

When the cab rank rule applies

Answer 9

The rule applies only when:
(a) You are a self employed barrister instructed by a professional client; and
(b) The instructions are appropriate taking into account your:
(i) Experience
(ii) Seniority
(iii) Field of practice
It does not apply to direct public access instructions.

Question 10

Effect of the cab rank rule

Answer 10

If the cab rank rule applies, you must accept the instructions regardless of:

(a) identity of the client
(b) nature of the case to which the instructions relate
(c) whether the client is paying privately or is publicly funded; and
(d) any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client.

Question 11

Exceptions to the cab rank rule

Answer 11

The cab rank rule does not apply if:

(a) You are required to refuse to accept instructions for the reasons set out in rC21.
(b) Accepting the instructions would require you to do something other than in the course of your ordinary working time, e.g. you would have to work over the next 3 weekends to carry out the instructions
(c) Accepting the instructions would require you to cancel a commitment already in your diary e.g. another trial
(d) The insurance cover available to you wouldn’t be enough if you were sued for professional negligence on the case
(e) Accepting the instructions would require you to do work outside the jurisdiction
(f) The professional client does not accept liability for your fees, is an unacceptable credit risk, or is instructing you in their personal capacity and not as a professional client
(g) You have not been offered a proper fee, or any fee which was agreed has not been paid, or the client wants you act on terms other than your standard terms of work.

Question 12

rC21 - Situations in which you must refuse instructions

Answer 12

• Diary clash
• Too busy
• Conflict of interest
• Too little knowledge/experience
• Conditional instructions from professional client

Question 13

Refusing instructions where there is a conflict of interest, or a real risk of conflict

Answer 13

(a) between your own personal interests and the interests of the prospective client
(b) between the prospective client and one or more of your former or existing clients in respect of the particular matter unless all of the clients give their informed consent to you acting in such circumstances
(c) a real risk that information confidential to another former or existing client, or any other person to whom you owe duties of confidence, may be relevant to the matter

• The test is ‘real risk.’
• If there is no risk, you should accept.
• If there is some risk, you should think about the degree of risk and refuse it if you think it is a real risk (and not only remotely possible). Consult client if appropriate.
• If there is a conflict of interest, you should refuse. If there is a real risk of conflict arising in the future, you should also refuse.

Question 14

gC69 - Informed consent

Answer 14

The client cannot give informed consent to a conflict of interest between the barrister and client. They can only give consent to conflict with another client.

Question 15

Confirmation in writing

Answer 15

When you first accept instructions, you must confirm in writing:

(a) That you accept the instructions
(b) The terms on which you will do the work
(c) The basis of charging

If you are a self-employed barrister in chambers, your clerk can confirm acceptance and terms on your behalf.

Question 16

Terms of service

Answer 16

• An agreement by a barrister to provide legal services is a contract like any other, so parties are free to agree terms
• Many barristers and chambers use the Bar Council’s Standard Contractual Terms
• A reference or link to these standard terms in the written confirmation to the professional client is sufficient
• If you are contracting on different terms, they need to be specified in the agreement

Question 17

Publicly funded cases

Answer 17

• Your client may be publicly funded by the Legal Aid Agency.
• If you become aware that your client has obtained legal aid dishonestly, you must cease to act and return your instructions unless the client takes action to remedy the situation immediately

Question 18

Confirmation before starting work

Answer 18

• You are required to confirm acceptance and terms before doing the work unless that is not reasonably practicable.
• If you cannot confirm in writing before starting work, you should do so as soon as reasonably practicable
• If you are a self employed barrister in chambers:
  (1) solicitors phone or email clerks with a request that you accept instructions
  (2) clerks contact you to confirm availability, timescales and an acceptable fee
  (3) clerks email solicitors with confirmation of acceptance, terms and fee
  (4) you carry out the work on the agreed terms

Question 19

Confirmation as soon as reasonably practicable

Answer 19

• Sometimes it might not be possible to confirm acceptance and terms in writing before doing the work e.g. you might be instructed on a hearing by a solicitor at the last minute when you are already at court. This is common in criminal practice.
• If this happens, you can accept instructions then and there, then inform clerks who will confirm by email to the solicitor as soon as reasonably practicable

Question 20

Additional instructions

Answer 20

• Once you have accepted instructions, you might be asked to do additional work on the same case. The confirmation you provide depends on what the additional work is and what the original instructions were for.
• e.g. your initial instructions may have been limited to writing an opinion on whether a claim should be made. The claim is then made and goes to trial and you are instructed in the trial. You should agree and confirm in writing a brief fee for the trial because it was not envisaged in the original instructions
• You are not required to confirm in writing again if the scope of your original instructions is varied by the client. You will be deemed to have accepted the additional instructions on the same terms. However, it is common sense and good practice to agree a variation of terms. Your client must always be clear about the fee.

Question 21

rC21 ‘must return’ circumstances arising after you have accepted instructions

Answer 21

• You have to consider the interests of each client affected.
• Your decision should be made according to which client will be least affected by you returning your instructions.
• Factors to consider:
  (a) The nature of the case - is it a complex or specialist matter which would limit the availability of alternative counsel?
  (b) The nature of the client - are they vulnerable? Would a change in representation affect them adversely? e.g. a client in a family case who has had to talk through difficult and sensitive evidence with you may not want to repeat the same with a different barrister
  (c) Is the hearing imminent? - If you have to choose between instructions to return, all being equal, you should return the case in which the client has more time to find another barrister for the hearing.

Question 22

Returning for confidentiality issues

Answer 22

• Your duty to keep a client’s affairs confidential applies to former as well as current clients
• If, having accepted instructions from both clients, a situation falls within rC21.4, it is likely that you will have to return instructions from both clients.

Question 23

Competence

Answer 23

• You should always carefully consider your level of experience and competence before accepting instructions.
• You should consider which would have the more adverse effect on the client’s interests: returning instructions or continuing to act? e.g. returning instructions the day before trial and leaving the client unrepresented is likely to leave them in a worse position than if you were to continue to act. Always consider the option of applying to the court for an adjournment in these circumstances.

Question 24

Lack of time

Answer 24

• Guidance recognises that there may be exceptional circumstances in which instructions are delivered so late that no suitable, competent advocate would have adequate time to prepare. In those cases you are not required to refuse instructions as it will be in the client’s interests for you to accept
• Therefore it follows that if you don’t have time e.g. to prepare properly for a trial in an existing client’s case because the date of a trial has been brought forward, you should not return your instructions - another barrister would not have enough time to properly prepare either. You simply have to do your best in the time available.

Question 25

Time management

Answer 25

• These rules are not intended to provide a ‘get out’ if you accept instructions and then find you do not have time to do them; they are intended to apply to circumstances outside of your control
• Always think about whether you can reasonably accommodate the instructions before you accept them. Remember that this is an exception to the cab rank rule and you can refuse them.

Question 26

Maintaining your independence

Answer 26

• You are required to refuse instructions if there is a real prospect you cannot maintain your independence.
• Bear in mind the cab rank rule preventing you from refusing instructions if you do not like the client or their views.
• An obvious example is if you feel threatened or are threatened by the client.

Question 27

‘must return’ - further provisions

Answer 27

(a) in a publicly funded case where you realise or it becomes apparent to you that this funding has been wrongly obtained by false or inaccurate information and action to remedy this is not taken immediately by your client
(b) the client refuses to authorise you to make some disclosure to the court which your duty to the court requires you to make
(c) you become aware during the course of a case that the existence of a document which should have been disclosed but has not been disclosed, and the client fails to disclose or permit you to disclose it, contrary to your advice.

Question 28

‘may return’ provisions

Answer 28

• You have flu
• Bereavement
• Aggressive client: only if it falls within ‘some other substantial reason’
• Booked holiday (but probably not a considered holiday)
• Critical client
• Payment not made

Question 29

Solicitor withdrawal

Answer 29

If your solicitor withdraws, you are no longer instructed on the case and you must return your instructions, unless you are instructed by new solicitors or appointed by the court.

Question 30

Client consent

Answer 30

• You can always ask your client if they are willing to let you return their instructions. If they agree, you may do so.
• However, you must explain the possible consequences to your client so they can give informed consent.

Question 31

What you must do before returning instructions

Answer 31

Whether you find yourself compelled to or free to return instructions, you must not do so without:
(a) seeking your client’s consent; or
(b) clearly explaining to your client or professional client the reasons for returning
You must not return instructions to another person (e.g. a colleague in chambers) without the consent of your client or professional client.