Behaving Ethically

Question 1

What requirements are included under your duty to act with honesty and integrity?

Answer 1

1. you must not knowingly or recklessly mislead or attempt to mislead anyone;
2. you must not draft any statement of case, witness statement, affidavit or other document containing:
   a) any statement of fact or contention which is not supported by your instructions
   b) any contention which you do not consider to be properly arguable
   c) any allegation of fraud unless you have clear instructions and you have reasonable credible material which establishes an arguable case
3. you mustn’t encourage a witness to give evidence which is misleading
4. you must not rehearse, practise with or coach a witness;
5. unless you have the permission of the other side, you must not communicate with any witness about the case while the witness is giving evidence;
6. you must not make, or offer to make any payments to a witness which are contingent on his evidence or on the outcome of the case
7. you must only propose or accept fee arrangements which are legal.

Question 2

How can the interests of justice and client’s interests be properly served?

Answer 2

if you remain honest and maintain your independence from external pressures.

Question 3

What can be seen as compromising your independence in breach of rule 8?

Answer 3

1. offering promising or giving:
   
   • any commission or referral fee
   • a gift to any client, professional client or other intermediary; or
2. lending money to any such client, professional client or other intermediary; or
3. accepting any money from any client, professional client or other intermediary, unless it is a payment for your professional services or reimbursement of expenses.

Question 4

What should you do if offered a gift by either current, prospective or former clients/professional clients?

Answer 4

consider carefully whether the circumstances and size of the gift would be reasonable to lead others to think that your independence had been compromised. If this would be the case, you should refuse to accept the gift

Question 5

Can entertainment be given/received at a disproportionate level?

Answer 5

not if it would be others consider that your independence had been compromised.

Question 6

What should practising barristers ensure as to any comments they make in the press?

Answer 6

that they do not undermine and are not reasonably seen to undermine their independence. The comment should also not bring the profession or any other barrister not disrepute.

Question 7

What is a specific aspect of your duty to act with honesty and integrity when the other side is legally represented?

Answer 7

you are expected to correspond at all times with the other parties legal rep

Question 8

What conduct is likely to be deemed a breach of CD3/5?

Answer 8

1. breaches of rule c10
2. criminal conduct other than minor offences
3. seriously offensive or discreditable conduct
4. dishonesty
5. unlawful victimisation or harassment
6. abuse of your professional position

Question 9

What can referring to your status as a barrister in an irrelevant context be deemed?

Answer 9

an abuse of your professional position and as such a breach of CD 3/5

Question 10

What conduct is not likely to be treated as a breach of CDs 3/5?

Answer 10

Minor criminal offences or conduct in your private/personal life unless this involves:

• committing a criminal offence (not minor); or
• abuse of. your professional position

Question 11

What do minor criminal offences include?

Answer 11

1. an offence committed in the UK which is a fixed penalty offence under the RTOA 1998;
2. an offence which is dealt with by a procedure substantially similar to such a fixed-penalty offence; or
3. an offence whose main ingredient is the unlawful parking of a motor vehicle

Question 12

what is classed as offensive or discreditable conduct?

Answer 12

1. victimisation or harassment
2. bullying
3. dishonesty

Question 13

What is rule C10?

Answer 13

you must not pay or receive referral fees

Question 14

What is the purpose of rule C10?

Answer 14

making or receiving payments to procure the referral to you by an intermediary of professional instructions is inconsistent with your obligations under CD 2,3 and 4 and may also breach CD5.

Question 15

What happens where public funding is in place?

Answer 15

the legal aid agency’s standard terms and conditions prohibit contract holders from making or receiving any payment for the referral or introduction of a client, whether or not the lay clients knows of and consents to the payment

Question 16

What is a referral fee?

Answer 16

in both public and privately funded cases, a referral fee to which the client has not consented may constitute a bribe and is therefore a criminal offence under the Bribery Act 2010.

Question 17

Where are referral fees and inducements prohibited?

Answer 17

where they relate to a claim or potential claim for damages for personal injury or death or arise out of circumstances involving personal injury or death of person claims

Question 17

Where are referral fees and inducements prohibited?

Answer 17

where they relate to a claim or potential claim for damages for personal injury or death or arise out of circumstances involving personal injury or death of person claims

Question 18

What does rule C10 not prohibit?

Answer 18

proper expenses that are not a reward for referring work such as genuine and reasonable payments for:

• clerking and administrative services;
• membership subscriptions to ADR bodies; and
• advertising and publicity which are payable whether or not work is referred.

Question 19

What is the rule regarding undertakings?

Answer 19

you must within an agreed timescale or within a reasonable period of time comply with any undertaking you give in the course of conducting litigation

Question 20

What must you ensure with regards to undertakings?

Answer 20

that your insurance covers you in respect of any liability incurred in giving an undertaking

Question 21

What is the rule on discrimination?

Answer 21

you must not discriminate unlawfully against, victimise or harass any other person not he grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, gender reassignment, sexual orientation, marital or civil partnership status, disability, age, religion, belief or pregnancy or maternity

Question 22

What is the rule on foreign work?

Answer 22

in connection with any foreign work you must comply with any applicable rule of conduct prescribed by the law or by any national or local bar of the place where the work is or is to be performed and the place whereby proceedings or matters to which the work relates are taking place or contemplated unless such rule is inconsistent with your core duties.