Honesty, Integrity and Independence Flashcards
You owe a duty to the court to act with independence in the interests of justice. This includes that you must ensure your ability to act independently is not compromised.
rC3.5
You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity and independence.
rC8
The following may reasonably be seen as compromising your independence in breach of rC8:
- Offering, promising or giving any commission or referral fee (which are in any case prohibited by rC10) or gift apart from items of modest value to any client, professional client or intermediary;
gC18
If offered a gift should consider carefully whether the circumstances and size of the gift would reasonably lead others to think that your independence had been compromised. If this is the case, should refuse to accept it.
gC19
Entertainment raises the same issues as gifts.
gC20
Elements of your duty to act with honesty and integrity:
- Must not knowingly or recklessly mislead or attempt to mislead anybody
- Must not draft documents containing statements not supported by your client, contentions you do not considered properly arguable, allegations of fraud without reasonably credible material, or statements of fact other than what you believe the witness would give if giving evidence orally
- Must not encourage a witness to give evidence which is misleading or untruthful
- Must not rehearse, practice with or coach a witness in respect of their evidence
- Unless you have permission of your opponent, must not communication with any witness whilst they are giving evidence
- Must not make or offer to make payments to any witness which are contingent on their evidence or the outcome of the case
- Must only propose or accept fee arrangements that are legal
rC9
Things barristers should be aware of in relation to media comment:
- Client’s best interests
- Independence
- Trust and confidence
- Confidentiality
gC22
Expected to correspond at all times with the opposing party’s legal representative if they have one
gC24
Referring to your status as a barrister when it’s irrelevant but may influence others may constitute abuse of your professional position and thus involve a breach of CD3, 5, 8. An example might be using professional notepaper in a private dispute.
gC26
Bases on which you must not discriminate unlawfully against anyone.
rC12
Must not withhold your services on the ground of the nature of the case or financial support (applies to direct access too).
rC28
This is a broader obligation which goes beyond discriminating unlawfully. Applies whether or not they belong to a protected group.
gC88
Use of social media is likely to engage Article 10 (freedom of expression) but this needs to be balanced. Regulatory action may be justifiable in some circumstances, such as where you post material online which is dishonest or discriminatory. Remember that comments can be shared more widely than intended – reposting, shared or screenshotted. Be aware that things like geotags could link you to a particular client. BSB will consider manner in which views are expressed.
BSB guidance for barristers using social media
BSB has a regulatory interest in conduct outside the scope of a barrister’s professional life because they can impact on public confidence in them and the profession but this doesn’t mean regulatory action will necessarily follow. CD5 and rC8 likely to be relevant. Applies to unregistered barristers because covers conduct when not practising. Will strike a balance between the public interest and human rights (Art 8 – right to private and family life and 10 – freedom of expression, Art 9 – freedom of thought, conscience and religion, Art 11 – freedom of assembly and association). They are qualified rights so may take regulatory action if justified. Barristers are held to a higher standard than normal members of the public albeit they are not to be viewed as “paragons of virtue”. The closer non-professional conduct to professional, practice, the greater the justification for regulatory action is likely to be. Unlikely to have a regulator interest if the conduct has no impact on professional practice or on public trust and confidence.
BSB guidance on the regulation of non-professional conduct
Barristers can collect evidence and take statements. However, should be careful about maintaining independence (rC21.10, gC73). May not be able to maintain independence if you appear as an advocate in a matter in which you’re likely to be called as a witness (unless peripheral). If likely to be a witness, can be involved in case preparations but cannot accept a brief even as a junior. Can only properly act if reasonably believe collection of evidence is unlikely to be challenged. Juniors should be able to conduct the case if the leader becomes indisposed. May be subject to wasted costs if the trial has to be adjourned because they should not have been involved.
Should withdraw if you are likely to be a witness on a question of fact – (rC25, gC73)
Investigating and Collecting Evidence and Taking Witness Statements Guidance
- Basic requirements under the equality act. Discrimination prohibited in relation to employment and service delivery
o Service delivery: unlawful to charge hearing impaired person an inflated brief fee for ‘extra hassle’ without genuine consideration of whether there is any real justification - Section 47 Equality Act 2010 specifically covers barristers and clerks
- Positive duty to make reasonable adjustments
- May take positive action to improve under representation of particular groups, e.g. targeted advertising
- Requirement not to discriminate does not just apply to clients, it applies to everyone they come into contact within the course of their professional dealings
- To comply with rC110, should ensure instructions and briefs are not delivered at such a time so as to preclude those with childcare from being eligible for that work (e.g. Friday afternoon for a trial on Monday). Late delivery of briefs may also disadvantage disabled barristers.
- Should actively rotate briefs to ensure pupils receive a fair range of different types of work.
- Clerks should be trained in relation to equality and diversity.
- Should explain to solicitors that discriminatory requests are unlawful, e.g. asking for a male barrister to do the trial. Should refuse if solicitor fails to reply and report solicitor to disciplinary body.
- Should arrange regular practice development meetings.
- Mentoring schemes should be in place.
- Marketing and networking activities should be organised so all pupils and tenants can be equally involved.
- rC110 requires chambers to have a written harassment policy. Should review every two years.
- It also requires a reasonable adjustment policy for supporting clients and workforce.
- Cannot pass cost onto disabled client if it is a reasonable adjustment.
- Should state on website that reasonable adjustments will be made and name of person to whom requests should be made.
- Not required to make a fundamental change in nature of service, e.g. change to conditional fee.
Equality rules: supporting information for chambers, Sections 1, 2, 8, 9, 12
