Accepting and Returning Instructions

Question 1

Circumstances where you MUST NOT ACCEPT instructions

Answer 1

You must NOT accept instructions to act in a case if:

(ii) There is a CONFLICT OF INTEREST, or a REAL RISK of a conflict of interest, between your own personal interests and the interests
of the prospective client;

rC21.2

Question 2

Circumstances where you MUST NOT ACCEPT instructions

rC21

Answer 2

You must NOT accept instructions to act in a case if:

(i) You CANNOT fulfil your obligation to ACT IN THE CLIENT’S BEST interest due to any existing or previous instructions;

rC21.1

Question 3

Circumstances where you MUST NOT ACCEPT instructions

Answer 3

You must NOT accept instructions to act in a case if:

There is a CONFLICT OF INTEREST, or a REAL RISK of a conflict of interest, between the prospective client and one or more of your former or current clients, UNLESS:

(1) You FULLY DISCLOSE to the relevant clients and prospective clients (as appropriate) the extent and nature of the conflict; AND

(2) ALL of the clients who have an interest in the case give their INFORMED CONSENT to you acting; AND

(3) You are able to ACT IN THE BEST INTERESTS OF EACH CLIENT
and independently.

rC21.3
gC69
rC21.3
gC69
rC21.4

Question 4

Circumstances where you MUST NOT ACCEPT instructions

Answer 4

There is a REAL RISK that:

(1) information CONFIDENTIAL to another former or existing client may be relevant to the prospective client’s case, AND

(2) the former or existing client DOES NOT CONSENT TO DISCLOSURE of that confidential information, AND

(3) you could NOT properly serve the prospective client’s best interests without disclosing the confidential information;

Question 5

Circumstances where you MUST NOT ACCEPT instructions

Answer 5

Your instructions seek to LIMIT YOUR ORDINARY AUTHORITY or DISCRETION in the conduct of the case in court

rC21.5

Question 6

Circumstances where you MUST NOT ACCEPT instructions

Answer 6

Your instructions require you to act OTHERWISE than in accordance with the LAW OR with the provisions of THE HANDBOOK;

rC21.6

Question 7

Circumstances where you MUST NOT ACCEPT instructions

Answer 7

You are NOT COMPETENT OR LACK SUFFICIENT EXPERIENCE to handle the case

(1) (including your ability to work with vulnerable clients)

rC21.8
gC71

Question 8

Circumstances where you MUST NOT ACCEPT instructions

Answer 8

YOU DO NOT HAVE ENOUGH TIME TO DEAL WITH THE CASE, unless the circumstances mean that it would still be in the client’s best interests for you to accept the instructions;

rC21.9
rC21.10

Question 9

Circumstances where you MUST NOT ACCEPT instructions

Answer 9

(ix) There is a real prospect that you will NOT BE ABLE TO MAINTAIN YOUR INDEPENDENCE.

(1) Examples include cases where you are likely to be CALLED AS A WITNESS on a material question of fact

gC73

Question 10

Circumstances where you MUST NOT ACCEPT instructions

Answer 10

(x) You are NOT AUTHORISED or ACCREDITED to perform the work required by your instructions;

(1) Including where the case requires you to conduct litigation, and you have not been authorised to conduct litigation.

rC21.7
gC70

Question 11

Investigating and collecting evidence and taking witness statements

Answer 11

(a) In respect of 1(a)(ix)(1) above the BSB Guidance on Self-Employed Practice is highly relevant.

The Guidance makes clear that if you are involved in the INVESTIGATION AND COLLECTION OF EVIDENCE in circumstances where you might be needed to give evidence about those activities then you MUST NOT accept a brief to conduct the case in court. This includes not accepting a brief to act as a junior barrister in a team of barristers (e.g. a case where you are to be led by a Q.C.), because a junior barrister in such a team is expected to be in a position to conduct the case in court if and when required.

Question 12

Investigating and collecting evidence and taking witness statements

Answer 12

(b) The ‘investigation and collection of evidence’ includes TAKING WITNESS STATEMENTS where you are interviewing the potential witness with a view to preparing a statement.

Question 13

Investigating and collecting evidence and taking witness statements

Answer 13

The rule DOES NOT apply to a case where a barrister properly accepts a brief and then, as part of his conduct of the case AT COURT, has to URGENTLY take a statement from his client or a potential witness. It applies where a barrister has investigated or collected evidence BEFORE arriving at court.

Question 14

Investigating and collecting evidence and taking witness statements

Answer 14

The rule DOES NOT extend to settling a witness statement (i.e. drafting a statement which complies with the appropriate court rules and excludes irrelevant or inadmissible material) from a ‘proof of evidence’ statement which has already been taken by another person.

Question 15

Investigating and collecting evidence and taking witness statements

Answer 15

Appearing in a case in BREACH OF THIS RULE exposes the barrister to the risk of a WASTED COSTS ORDER if the case had to be adjourned as a result of the barrister’s withdrawal from the case, as well as ENFORCEMENT ACTION being taken by the BSB for breach of the
Handbook

Question 16

Investigating and collecting evidence and taking witness statements

Answer 16

You have a duty to keep under review whether you should continue to
act in any case in the light of any developments which might engage
this rule (i.e. if you become involved in the collection or investigation of evidence during your conduct of the case).

Question 17

Circumstances where you MUST RETURN instructions already accepted

rC25
rC25.1
rC25.3
rC25.1

Answer 17

(a) Where you have accepted instructions but one or more of the circumstances in 3.1 above arises, you MUST CEASE TO ACT and return your instructions promptly.

(b) In addition, you MUST CEASE TO ACT and return your instructions if:

(i) The client REFUSES TO AUTHORISE you to make some disclosure to the court which your duty to the court requires you to make;

(ii) You become aware of the existence of a document which should have been but has not been disclosed, and the client refuses to
authorise disclosure, contrary to your advice;

(iii) In a criminal or civil legal aid case, the FUNDING HAS BEEN WRONGLY OBTAINED BY FALSE OR INACCURATE INFORMATION and your client refuses to remedy the situation immediately.

Question 18

Circumstances where you MAY RETURN instructions

rC26.1
rC26.2

Answer 18

You MAY CEASE TO ACT in a case and return your instructions if:

(i) Your PROFESSIONAL CONDUCT IS BEING CALLED INTO QUESTION;

or

(ii) The CLIENT CONSENTS;

Question 19

Circumstances where you MAY RETURN instructions

rC26.6

Answer 19

You MAY CEASE TO ACT in a case and return your instructions if:

You become aware of PRIVILEGED OR CONFIDENTIAL INFORMATION or documents belonging to another person in the case in which you are instructed;

Question 20

Circumstances where you MAY RETURN instructions

rC26.3.a

Answer 20

You MAY CEASE TO ACT in a case and return your instructions if:

(iv) Despite all reasonable efforts, a hearing is fixed for a date when you are not available;

Question 21

Circumstances where you MAY RETURN instructions

rC26.3.b

Answer 21

You MAY CEASE TO ACT in a case and return your instructions if:

Illness, injury, pregnancy, childbirth, bereavement or a similar matter makes you unable to perform the services required;

(1) You CANNOT rely on this rule to break a professional engagement for ANY OTHER personal reason.

Question 22

Circumstances where you MAY RETURN instructions

rC26.3.c

Answer 22

You MAY CEASE TO ACT in a case and return your instructions if:

You are unavoidably required to do JURY SERVICE;

Question 23

Circumstances where you MAY RETURN instructions

rC26.5

Answer 23

You MAY CEASE TO ACT in a case and return your instructions if:

You do NOT RECEIVE PAYMENT when due in accordance with agreed terms, AND you make clear to the client that non-payment
will result in you ceasing to act, AND you give the client reasonable notice of the requirement to pay;

Question 24

Circumstances where you MAY RETURN instructions

Necessary Steps when Returning Instructions

rC27.1

Answer 24

Notwithstanding the preceding rules, you MUST NOT cease to act or return instructions without either:

(i) Obtaining your client’s CONSENT; or

(ii) CLEARLY EXPLAINING to your client (lay or professional) the REASONS for doing so.

Question 25

Circumstances where you MAY RETURN instructions rC26.8

Answer 25

You MAY CEASE TO ACT in a case and return your instructions if: There is some other substantial reason for doing so.

Question 26

Circumstances where you MAY RETURN instructions Necessary Steps when Returning Instructions rC27.2 gC73

Answer 26

Further, you MUST NOT return any instructions to another person (usually another barrister) WITHOUT CONSENT from either your lay or professional client. (i) If you are planning to withdraw from a case because it appears likely that you will be called as a witness in the proceedings on a material question of fact, you should ONLY WITHDRAW if you can do so WITHOUT JEOPARDISING the client’s interests.

Question 26

Miscellaneous Provisions about the Return of Instructions gC83

Answer 26

(a) When deciding whether to cease to act in a case under these rules you should, subject to your duty to the court, ENSURE that the client is not ADVERSELY AFFECTED because there is insufficient time to instruct new counsel.

Question 27

Miscellaneous Provisions about the Return of Instructions gC83

Answer 27

b) If you are instructed by solicitors and they withdraw from the case you can NOT continue to act UNLESS: (i) You are APPOINTED by the court; or (ii) You receive NEW instructions.

Question 28

Miscellaneous Provisions about the Return of Instructions gC84

Answer 28

If you are appointed by the court, you are NOT bound by the ‘cab rank’ rule (see 8 below) and thus are NOT OBLIGED to accept the court’s appointment

Question 29

Miscellaneous Provisions about the Return of Instructions If a FUNDAMENTAL CHANGE is made to the BASIS OF YOUR REMUNERATION in a case, then you should treat the change as though your initial instructions had been withdrawn and replaced by an offer of new instructions on the new terms: gC87

Answer 29

(i) You must then decide whether you are obliged to accept the new instructions under the ‘cab rank rule’; (ii) If you are so obliged, then you must accept them; (iii) If not, then you may decline them; (iv) If you decline the new instructions on this basis you will NOT be treated as having ‘withdrawn’ from the case.

Question 30

The Requirement NOT to withhold your services You must not withhold your services or permit your services to be withheld: rC28

Answer 30

(i) On the ground that the NATURE of the case is OBJECTIONABLE to you or to any section of the public; (ii) On the ground that the CONDUCT, OPINIONS or BELIEFS of the prospective client are UNACCEPTABLE to you or to any section of the public; (iii) On any ground relating to the source of any FINANCIAL SUPPORT which may properly be given to the prospective client for the proceedings in question. (b) This rule applies to any case irrespective of whether you are instructed by a solicitor or directly by a lay client. (c) The rule in 7(a)(iii) above operates to prevent barristers from refusing instructions because the client is entitled to Criminal or Civil Legal Aid funding.

Question 31

The Requirement NOT to withhold your services You must not withhold your services or permit your services to be withheld:

Question 32

The ‘Cab Rank’ Rule rC29

Answer 32

(a) The rule applies when: (i) You are acting as a SELF-EMPLOYED BARRISTER; AND (ii) you receive instructions in a case from a PROFESSIONAL CLIENT; AND (iii) you possess the appropriate SENIORITY/ EXPERIENCE/ KNOWLEDGE of the area of law to act in the case. (b) In such circumstances, YOU MUST ACCEPT THE BRIEF (subject to the exceptions set out in 9 below). (c) This rule applies irrespective of the following: (i) The IDENTITY of the client; (ii) The NATURE of the case; (iii) Whether client is PUBLICLY FUNDED or not; (iv) Any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client. (d) According to the Cab Rank Rule Guidance published by the BSB, the Cab Rank Rule applies to instructions received from ANY (legal) PROFESSIONAL CLIENT (not just solicitors) regulated by another approved regulator (i) the list of approved regulators includes: Legal Executives, patent attorneys, licensed conveyancers and law costs draftsmen

Question 33

Exceptions to the ‘Cab Rank’ Rule rC30

Answer 33

The ‘cab rank’ rule does NOT apply if: (i) You are REQUIRED TO REFUSE the instructions pursuant to paragraph 3.1. above; (ii) You have not been offered a proper fee for your services;

Question 34

Exceptions to the ‘Cab Rank’ Rule (ii) You have not been offered a proper fee for your services; gC90 gC91

Answer 34

(1) In determining whether you have been offered a proper fee you must have regard to: [a] the complexity, length and difficulty of the case; [b] your ability, experience and seniority; [c] the expense which you will incur. (2) You are NOT obliged to accept a conditional fee agreement under this rule;

Question 35

Exceptions to the ‘Cab Rank’ Rule

Answer 35

(iii) The instructions require you to do something other than in the course of ORDINARY WORKING TIME or require you to cancel an existing diary commitment; (iv) The potential for professional negligence liability exceeds the level of professional indemnity insurance reasonably available to you; (v) You are a QC and the instructions require you to act without a junior, where the circumstances require a junior; (vi) The instructions require you to do any foreign work; (vii) Your instructing solicitors: (1) Are not accepting liability for your fees; (2) Represent an unreasonable credit risk; (3) Are instructing you as a lay client rather than in their capacity as a professional client

Question 36

Exceptions to the ‘Cab Rank’ Rule

Answer 36

In any case where you are NOT to be paid by the Legal Aid agency or the CPS, the ‘Cab Rank’ rule does not apply if: (1) Your fees have not been agreed; or (2) Having required your fees to be paid before acceptance of instructions, those fees have not been paid; (3) Accepting the instructions would require you to act other than in accordance with your standard contractual terms, or the Bar Council’s standard contractual terms. (4) Examples of your professional client representing an unreasonable credit risk for the purposes of 9(a)(vii)(2) above include: [a] They appear on the Bar Council’s list of Defaulting Solicitors; [b] Another barrister has obtained judgment against them which remains unpaid; [c] The firm is subject to insolvency, an IVA or PVA; [d] There is evidence of other unsatisfied court judgments that call into question the solicitors’ ability to pay. [e] Even where there is a serious credit risk you must explore alternative payment methods before refusing instructions, including, seeking payment of your fees on account, or payment into a 3rd party payment service.

Question 37

Rules when Accepting Instructions rC22.1 gC77 Chapter 4

Answer 37

(a) When you first accept instructions to act in a matter you MUST confirm in writing: (i) Acceptance of the instructions; AND (ii) The terms/ basis on which you will be acting, including the basis of any charging. (1) It is acceptable for your clerk to confirm acceptance and terms of acceptance on your behalf.

Question 38

Exceptions to the ‘Cab Rank’ Rule