Part 2 Code of conduct • Part 2 A, B, C1, C2, C3, C4, C5 (rC76-rC78, rC86-rC88) Flashcards

Question

RC4?

Answer 1

Your duty to act in the best interests of each client is subject to your duty to the court.

Answer 2

Your duty to the court does not require you to act in breach of your duty to keep the affairs of each client confidential.

Answer 3

.1 you must not: .a make submissions, representations or any other statement; or .b ask questions which suggest facts to witnesses which you know, or are instructed, are untrue or misleading. .2 you must not call witnesses to give evidence or put affidavits or witness statements to the court which you know, or are instructed, are untrue or misleading, unless you make clear to the court the true position as known by or instructed to you.

Answer 4

Rules rC3 – rC6 set out some specific aspects of your duty to the court (CD1). See CD1 and associated Guidance at gC1.

Answer 5

As to your duty not to mislead the court: .1 knowingly misleading the court includes being complicit in another person misleading the court; .2 knowingly misleading the court also includes inadvertently misleading the court if you later realise that you have misled the court, and you fail to correct the position; .3 recklessly means being indifferent to the truth, or not caring whether something is true or false; and .4 the duty continues to apply for the duration of the case.

Answer 6

Your duty under Rule rC3.4 includes drawing to the attention of the court any decision or provision which may be adverse to the interests of your client. It is particularly important where you are appearing against a litigant who is not legally represented.

Answer 7

You are obliged by CD2 to promote and to protect your client’s interests so far as that is consistent with the law and with your overriding duty to the court under CD1. 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.

Answer 8

For example, 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. See, further, the guidance at gC14.

Answer 9

As set out in Rule rC5, your duty to the court does not permit or require you to disclose confidential information which you have obtained in the course of your instructions and which your client has not authorised you to disclose to the court. However, Rule rC6 requires you not knowingly to mislead the court. There may be situations where you have obligations under both these rules.

Answer 10

Rule rC4 makes it clear that your duty to act in the best interests of your client is subject to your duty to the court. For example, if your client were to tell you that they have committed the crime with which they were charged, in order to be able to ensure compliance with Rule rC4 on the one hand and Rule rC3 and Rule rC6 on the other: .1 you would not be entitled to disclose that information to the court without your client’s consent; and .2 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.

Answer 11

However, you would be misleading the court and would therefore be in breach of Rules rC5 and rC6 if you were to set up a positive case inconsistent with the confession, as for example by: .1 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 .2 suggesting that someone else had done so; or .3 putting forward an alibi.

Answer 12

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: see Rules rC25 to rC27 below. In these circumstances you must not reveal the information to the court.

Answer 13

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.

Answer 14

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.

Answer 15

Where you are acting as an advocate, your duty not to abuse your role includes the following obligations: .1 you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person; .2 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; .3 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 BSB Handbook .c where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary. .4 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.

Answer 16

Those regulated by the Bar Standards Board maintain standards of honesty, integrity and independence, and are seen as so doing.

Answer 17

The proper administration of justice, access to justice and the best interests of clients are served.

Answer 18

Those regulated by the Bar Standards Board do not discriminate unlawfully and take appropriate steps to prevent discrimination occurring in their practices.

Answer 19

Those regulated by the Bar Standards Board and clients understand the obligations of honesty, integrity and independence.

Answer 20

You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).

Answer 21

Your duty to act with honesty and with integrity under CD3 includes the following requirements: .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 client or 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 to allege fraud and you have reasonably credible material which establishes an arguable case of fraud; .d (in the case of a witness statement or affidavit) any statement of fact other than the evidence which you reasonably believe the witness would give if the witness were giving evidence orally; .3 you must not encourage a witness to give evidence which is misleading or untruthful; .4 you must not rehearse, practise with or coach a witness in respect of their evidence; .5 unless you have the permission of the representative for the opposing side or of the court, you must not communicate with any witness (including your client) about the case while the witness is giving evidence; .6 you must not make, or offer to make, payments to any witness which are contingent on their evidence or on the outcome of the case; .7 you must only propose, or accept, fee arrangements which are legal.

Answer 22

Your honesty, integrity and independence are fundamental. The interests of justice (CD1) and the client’s best interests (CD2) can only be properly served, and any conflicts between the two properly resolved, if you conduct yourself honestly and maintain your independence from external pressures, as required by CD3 and CD4. You should also refer to Rule rC16 which subjects your duty to act in the best interests of your client (CD2) to your observance of CD3 and CD4, as well as to your duty to the court (CD1).

Answer 23

Other rules deal with specific aspects of your obligation to act in your client’s best interests (CD2) while maintaining honesty, integrity (CD3) and independence (CD4), such as rule rC21.10 (not acting where your independence is compromised), rule rC10 (not paying or accepting referral fees) and rC21 (not acting in circumstances of a conflict of interest or where you risk breaching one client’s confidentiality in favour of another’s).

Answer 24

Rule C8 addresses how your conduct is perceived by the public. Conduct on your part which the public may reasonably perceive as undermining your honesty, integrity or independence is likely to diminish the trust and confidence which the public places in you or in the profession, in breach of CD5. Rule C9 is not exhaustive of the ways in which CD5 may be breached.

Answer 25

In addition to your obligation to only propose, or accept, fee arrangements which are legal in Rule C9.7, you must also have regard to your obligations in relation to referral fees in Rule rC10 and the associated guidance. Examples of how you may be seen as compromising your independence

Answer 26

The following may reasonably be seen as compromising your independence in breach of Rule 8 (whether or not the circumstances are such that Rule rC10 is also breached): .1 offering, promising or giving: .a any commission or referral fee (of whatever size) – note that these are in any case prohibited by Rule rC10 and associated guidance; or .b a gift (apart from items of modest value), 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 (whether as a loan or otherwise) from any client, professional client or other intermediary, unless it is a payment for your professional services or reimbursement of expenses or of disbursements made on behalf of the client;

Answer 27

If you are offered a gift by a current, prospective or former client, professional client or other intermediary, you 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 would be the case, you should refuse to accept the gift.

Answer 28

The giving or receiving of entertainment at a disproportionate level may also give rise to a similar issue and so should not be offered or accepted if it would lead others reasonably to think that your independence had been compromised.

Answer 29

Guidance gC18 to gC20 above is likely to be more relevant where you are a self-employed barrister, a BSB entity, an authorised (non-BSB) individual, an employed barrister (BSB entity) or a manager of a BSB entity. If you are a BSB authorised individual who is a an employee or manager of an authorised (non-BSB) body or you are an employed barrister (non-authorised body) and your approved regulator or employer (as appropriate) permits payments to which Rule rC10 applies, you may make or receive such payments only in your capacity as such and as permitted by the rules of your approved regulator or employer (as appropriate). For further information on referral fees, see the guidance at gC32).

Answer 30

The ethical obligations that apply in relation to your professional practice generally continue to apply in relation to media comment. In particular, barristers should be aware of the following: * Client’s best interests: Core Duty 2 and Rules C15.1-.2 require a barrister to promote fearlessly and by all proper and lawful means the lay client’s best interests and to do so without regard to their own interests. * Independence: Core Duties 3 and 4 provide that you must not permit your absolute independence, integrity and freedom from external pressures to be compromised. * Trust and confidence: Core Duty 5 provides that you must not behave in a way which is likely to diminish the trust and confidence which the public places in you or the profession. * Confidentiality: Core Duty 6 and Rule C15.5 require you to preserve the confidentiality of your lay client’s affairs and you must not undermine this unless permitted to do so by law or with the express consent of the lay client.

Answer 31

Rule rC9 sets out some specific aspects of your duty under CD3 to act with honesty and also with integrity.

Answer 32

In addition to the above, where the other side is legally represented and you are conducting correspondence in respect of the particular matter, you are expected to correspond at all times with that other party’s legal representative – otherwise you may be regarded as breaching CD3 or Rule C9.

Answer 33

gC25 A breach of Rule rC9 may also constitute a breach of CD3 and/or CD5. Other conduct which is likely to be treated as a breach of CD3 and/or CD5 includes (but is not limited to): .1 subject to Guidance C27 below, breaches of Rule rC8; .2 breaches of Rule rC10; .3 criminal conduct, other than minor criminal offences (see Guidance C27); .4 seriously offensive or discreditable conduct towards third parties; .5 dishonesty; .6 unlawful victimisation or harassment; or .7 abuse of your professional position.

Answer 34

For the purposes of Guidance gC25.7 above, referring to your status as a barrister, for example on professional notepaper, in a context where it is irrelevant, such as in a private dispute, may well constitute abuse of your professional position and thus involve a breach of CD3 and/or CD5.

Answer 35

Conduct which is not likely to be treated as a breach of Rules rC8 or rC9, or CD3 or CD5, includes (but is not limited to): .1 minor criminal offences; .2 your conduct in your private or personal life, unless this involves: .a abuse of your professional position; or .b committing a criminal offence, other than a minor criminal offence.

Answer 36

For the purpose of Guidance C27 above, minor criminal offences include: .1 an offence committed in the United Kingdom which is a fixed-penalty offence under the Road Traffic Offenders Act 1988; or .2 an offence committed in the United Kingdom or abroad which is dealt with by a procedure substantially similar to that for such a fixed-penalty offence; or .3 an offence whose main ingredient is the unlawful parking of a motor vehicle.

Answer 37

You must not pay or receive referral fees.

Answer 38

Making or receiving payments in order to procure or reward the referral to you by an intermediary of professional instructions is inconsistent with your obligations under CD2 and/or CD3 and/or CD4 and may also breach CD5.

Answer 39

Moreover: .1 where public funding is in place, the Legal Aid Agency’s Unified Contract Standard Terms explicitly prohibit contract-holders from making or receiving any payment (or any other benefit) for the referral or introduction of a client, whether or not the lay client knows of, and consents to, the payment; .2 whether in a private or publicly funded case, a referral fee to which the client has not consented may constitute a bribe and therefore a criminal offence under the Bribery Act 2010;

Answer 40

Referral fees and inducements (as defined in the Criminal Justice and Courts Act 2015) are prohibited 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 personal injury claims: section 56 Legal Aid, Sentencing and Punishment of Offenders Act 2012 and section 58 Criminal Justice and Courts Act 2015. Rule rC10 does not prohibit proper expenses that are not a reward for referring work, such as genuine and reasonable payments for: .1 clerking and administrative services (including where these are outsourced); .2 membership subscriptions to ADR bodies that appoint or recommend a person to provide mediation, arbitration or adjudication services; or .3 advertising and publicity, which are payable whether or not any work is referred. However, the fact that a fee varies with the amount of work received does not necessarily mean that that it is a referral fee, if it is genuinely for a marketing service from someone who is not directing work to one provider rather than another, depending on who pays more.

Answer 41

Further guidance is available on the BSB’s website.

Answer 42

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.

Answer 43

You should ensure your insurance covers you in respect of any liability incurred in giving an undertaking.

Answer 44

You must not discriminate unlawfully against, victimise or harass any other person on the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, gender re-assignment, sexual orientation, marital or civil partnership status, disability, age, religion or belief, or pregnancy and maternity.

Answer 45

Rules rC110 and associated guidance are also relevant to equality and diversity. The BSB’s Supporting Information on the BSB Handbook Equality Rules is available on the BSB website.

Answer 46

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: .1 the place where the work is or is to be performed; and .2 the place where any proceedings or matters to which the work relates are taking place or contemplated; unless such rule is inconsistent with any requirement of the Core Duties.

Answer 47

If you solicit work in any jurisdiction outside England and Wales, you must not do so in a manner which would be prohibited if you were a member of the local Bar.

Answer 48

When you are engaged in cross border activities within a CCBE State other than the UK, you must comply with the rules at 2.D5 which implement the part of the Code of Conduct for European Lawyers not otherwise covered by this Handbook as well as with any other applicable rules of conduct relevant to that particular CCBE State. It is your responsibility to inform yourself as to any applicable rules of conduct.

Answer 49

Clients receive a competent standard of work and service.

Answer 50

Clients’ best interests are protected and promoted by those acting for them.

Answer 51

BSB authorised persons do not accept instructions from clients where there is a conflict between their own interests and the clients’ or where there is a conflict between one or more clients except when permitted in this Handbook.

Answer 52

Clients know what to expect and understand the advice they are given.

Answer 53

Care is given to ensure that the interests of vulnerable clients are taken into account and their needs are met.

Answer 54

Clients have confidence in those who are instructed to act on their behalf.

Answer 55

Instructions are not accepted, refused, or returned in circumstances which adversely affect the administration of justice, access to justice or (so far as compatible with these) the best interests of the client.

Answer 56

Clients and BSB authorised persons and authorised (non-BSB) individuals and managers of BSB entities are clear about the circumstances in which instructions may not be accepted or may or must be returned.

Answer 57

Clients are adequately informed as to the terms on which work is to be done.

Answer 58

Clients understand how to bring a complaint and complaints are dealt with promptly, fairly, openly and effectively.

Answer 59

Clients understand who is responsible for work done for them.

Answer 60

Your duty to act in the best interests of each client (CD2), to provide a competent standard of work and service to each client (CD7) and to keep the affairs of each client confidential (CD6) includes the following obligations: .1 you must promote fearlessly and by all proper and lawful means the client’s best interests; .2 you must do so without regard to your own interests or to any consequences to you (which may include, for the avoidance of doubt, you being required to take reasonable steps to mitigate the effects of any breach of this Handbook); .3 you must do so without regard to the consequences to any other person (whether to your professional client, employer or any other person); .4 you must not permit your professional client, employer or any other person to limit your discretion as to how the interests of the client can best be served; and .5 you must protect the confidentiality of each client’s affairs, except for such disclosures as are required or permitted by law or to which your client gives informed consent.

Answer 61

Your duty to act in the best interests of each client (CD2) is subject to your duty to the court (CD1) and to your obligations to act with honesty, and with integrity (CD3) and to maintain your independence (CD4).

Answer 62

Your duty is to your client, not to your professional client or other intermediary (if any).

Answer 63

Rules rC15 and rC16 are expressed in terms of the interests of each client. This is because you may only accept instructions to act for more than one client if you are able to act in the best interests of each client as if that client were your only client, as CD2 requires of you. See further Rule rC17 on the circumstances when you are obliged to advise your client to seek other legal representation and Rules rC21.2 and rC21.3 on conflicts of interest and the guidance to those rules at gC69.

Answer 64

CD7 requires not only that you provide a competent standard of work but also a competent standard of service to your client. Rule rC15 is not exhaustive of what you must do to ensure your compliance with CD2 and CD7. By way of example, a competent standard of work and of service also includes: .1 treating each client with courtesy and consideration; and .2 seeking to advise your client, in terms they can understand; and .3 taking all reasonable steps to avoid incurring unnecessary expense; and .4 reading your instructions promptly. This may be important if there is a time limit or limitation period. If you fail to read your instructions promptly, it is possible that you will not be aware of the time limit until it is too late.

Answer 65

In order to be able to provide a competent standard of work, you should keep your professional knowledge and skills up to date, regularly take part in professional development and educational activities that maintain and further develop your competence and performance and, where you are a BSB entity or a manager of such body, you should take reasonable steps to ensure that managers and employees within your organisation undertake such training. Merely complying with the Continuing Professional Development requirements may not be sufficient to comply with Rule rC15. You should also ensure that you comply with any specific training requirements of the Bar Standards Board before undertaking certain activities – for example, you should not attend a police station to advise a suspect or interviewee as to the handling and conduct of police interviews unless you have complied with the following training requirements imposed by the Bar Standards Board: barristers undertaking publicly funded police station work under a criminal contract must comply with the training requirements specified by the Legal Aid Agency. Barristers undertaking privately funded police station work must complete the Police Station Qualification (“PSQ”) and (if they do not hold higher rights of audience) the Magistrates Court Qualification. Similarly, you should not undertake public access work without successfully completing the required training specified by the Bar Standards Board.

Answer 66

In addition to Guidance gC38 above, a BSB entity or a manager of such body should ensure that work is allocated appropriately, to managers and/or employees with the appropriate knowledge and expertise to undertake such work.

Answer 67

You should remember that your client may not be familiar with legal proceedings and may find them difficult and stressful. You should do what you reasonably can to ensure that the client understands the process and what to expect from it and from you. You should also try to avoid any unnecessary distress for your client. This is particularly important where you are dealing with a vulnerable client.

Answer 68

The duty of confidentiality (CD6) is central to the administration of justice. Clients who put their confidence in their legal advisers must be able to do so in the knowledge that the information they give, or which is given on their behalf, will stay confidential. In normal circumstances, this information will be privileged and not disclosed to a court. CD6, rC4 and Guidance gC8 and gC11 to gC13 provide further information.

Answer 69

Rule rC15.5 acknowledges that your duty of confidentiality is subject to an exception if disclosure is required or permitted by law. For example, you may be obliged to disclose certain matters by the Proceeds of Crime Act 2002. Disclosure in those circumstances would not amount to a breach of CD6 or Rule rC15.5 In other circumstances, you may only make disclosure of confidential information where your client gives informed consent to the disclosure. See the Guidance to Rule rC21 at gC69 for an example of circumstances where it may be appropriate for you to seek such consent.

Answer 70

There may be circumstances when your duty of confidentiality to your client conflicts with your duty to the court. Rule rC4 and Guidance gC8 and gC11 to gC13 provide further information.

Answer 71

Similarly, there may be circumstances when your duty of confidentiality to your client conflicts with your duty to your regulator. Rule rC64 and Guidance gC92 in respect of that rule provide further information. In addition, Rule rC66 may also apply.

Answer 72

If you are a pupil of, or are devilling work for, a self-employed barrister, Rule rC15.5 applies to you as if the client of the self-employed barrister was your own client.

Answer 73

The section You and Your Practice, at 2.C5, provides for duties regarding the systems and procedures you must put in place and enforce in order to ensure compliance with Rule rC15.5.

Answer 74

If you are an authorised individual or a manager working in a BSB entity your personal duty to act in the best interests of your client requires you to assist in the redistribution of client files and otherwise assisting to ensure each client’s interests are protected in the event that the BSB entity itself is unable to do so for whatever reason (for example, insolvency).

Answer 75

Your duty to act in the best interests of each client (CD2) includes a duty to consider whether the client’s best interests are served by different legal representation, and if so, to advise the client to that effect.

Answer 76

Your duty to comply with Rule rC17 may require you to advise your client that in their best interests they should be represented by: .1 a different advocate or legal representative, whether more senior or more junior than you, or with different experience from yours; .2 more than one advocate or legal representative; .3 fewer advocates or legal representatives than have been instructed; or .4 in the case where you are acting through a professional client, different solicitors.

Answer 77

Specific rules apply where you are acting on a public access basis, which oblige you to consider whether solicitors should also be instructed. As to these see the public access rules at Section 2.D2 and further in respect of BSB entities Rule S28 and the associated guidance.

Answer 78

CD2 and Rules rC15.5 and rC17 require you, subject to Rule rC16, to put your client’s interests ahead of your own and those of any other person. If you consider that your professional client, another solicitor or intermediary, another barrister, or any other person acting on behalf of your client has been negligent, you should ensure that your client is advised of this.

Answer 79

Your duty to provide a competent standard of work and service to each client (CD7) includes a duty to inform your professional client, or your client if instructed by a client, as far as reasonably possible in sufficient time to enable appropriate steps to be taken to protect the client’s interests, if: .1 it becomes apparent to you that you will not be able to carry out the instructions within the time requested, or within a reasonable time after receipt of instructions; or .2 there is an appreciable risk that you may not be able to undertake the instructions.

Answer 80

For further information about what you should do in the event that you have a clash of listings, please refer to our guidance which can be accessed on the Bar Standards Board’s website.

Answer 81

rC19 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: .1 the nature and scope of the legal services which you are offering or agreeing to supply; .2 the terms on which the legal services will be supplied, who will carry out the work and the basis of charging; .3 who is legally responsible for the provision of the services; .4 whether you are entitled to supply those services and the extent to which you are regulated when providing those services and by whom; or .5 the extent to which you are covered by insurance against claims for professional negligence.

Answer 82

The best interests of clients (CD2) and public confidence in the profession (CD5) are undermined if there is a lack of clarity as to whether services are regulated, who is supplying them, on what terms, and what redress clients have and against whom if things go wrong. Rule rC19 may potentially be infringed in a broad variety of situations. You must consider how matters will appear to the client.

Answer 83

Clients may, by way of example, be misled if self-employed barristers were to share premises with solicitors or other professionals without making sufficiently clear to clients that they remain separate and independent from one another and are not responsible for one another’s work.

Answer 84

Likewise, it is likely to be necessary to make clear to clients that any entity established as a “ProcureCo” is not itself able to supply reserved legal activities and is not subject to regulation by the Bar Standards Board.

Answer 85

A set of chambers dealing directly with unsophisticated lay clients might breach Rule rC19 if its branding created the appearance of an entity or partnership and it failed to explain that the members of chambers are, in fact, self-employed individuals who are not responsible for one another’s work.

Answer 86

Knowingly or recklessly publishing advertising material which is inaccurate or likely to mislead could also result in you being in breach of Rule rC19. You should be particularly careful about making comparisons with other persons as these may often be regarded as misleading.

Answer 87

If you carry out public access work but are not authorised to conduct litigation, you would breach Rule rC19 if you caused or permitted your client to be misled into believing that you are entitled to, or will, provide services that include the conduct of litigation on behalf of your client.

Answer 88

If you are a self-employed barrister, you would, for example, likely be regarded as having breached Rule rC19 if you charged at your own hourly rate for work done by a devil or pupil. Moreover, such conduct may well breach your duty to act with honesty and also with integrity (CD3).

Answer 89

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. You should also be aware of the rules set out in Section D4 of this Code of Conduct and the additional guidance for unregistered barristers available on the Bar Standards Board website.

Answer 90

Rule C19.3 is particularly relevant where you act in more than one capacity, for example as a BSB authorised individual as well as a manager or employee of an authorised (non BSB) body. This is because you should make it clear to each client in what capacity you are acting and, therefore, who has legal responsibility for the provision of the services.

Answer 91

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.

Answer 92

A number of other rules impose positive obligations on you, in particular circumstances, to make clear your regulatory status and the basis and terms on which you are acting. See, for example, Rule rC23 and guidance gC74.

Answer 93

Where you are a BSB authorised individual, you are personally responsible for your own conduct and for your professional work. You must use your own professional judgment in relation to those matters on which you are instructed and be able to justify your decisions and actions. You must do this notwithstanding the views of your client, professional client, employer or any other person.

Answer 94

It is fundamental that BSB authorised individuals and authorised (non-BSB) individuals are personally responsible for their own conduct and for their own professional work, whether they are acting in a self-employed or employed capacity (in the case of BSB authorised individuals) or as an employee or manager of a BSB entity (in the case of authorised (non-BSB) individuals).

Answer 95

Nothing in Rule rC20 is intended to prevent you from delegating or outsourcing to any other person discrete tasks (for example, research) which such other person is well-equipped to provide. However, where such tasks are delegated or outsourced, you remain personally responsible for such work. Further, in circumstances where such tasks are being outsourced, Rule rC86 which deals with outsourcing, must be complied with.

Answer 96

You are responsible for the service provided by all those who represent you in your dealings with your client, including your clerks or any other employees or agents.

Answer 97

Nothing in this rule or guidance prevents a BSB entity from contracting on the basis that any civil liability for the services provided by a BSB regulated individual lies with the BSB entity and the BSB regulated individual is not to be liable. However, any such stipulation as to civil liability does not affect the regulatory obligations of the BSB regulated individual including (but not limited to) that of being personally responsible under Rule rC20 for the professional judgments made.

Answer 98

See, further, guidance to Rule rC19, as regards work by pupils and devils Rule rC15, gC124 and Rule rC86 (on outsourcing).

Answer 99

You must not accept instructions to act in a particular matter if: .1 due to any existing or previous instructions you are not able to fulfil your obligation to act in the best interests of the prospective client; or .2 there is a conflict of interest, or real risk of conflict of interest, between your own personal interests and the interests of the prospective client in respect of the particular matter; or .3 there is a conflict of interest, or real risk of conflict of interest, 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 who have an interest in the particular matter give their informed consent to your acting in such circumstances; or .4 there is 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, such that if, obliged to maintain confidentiality, you could not act in the best interests of the prospective client, and the former or existing client or person to whom you owe that duty does not give informed consent to disclosure of that confidential information; or .5 your instructions seek to limit your ordinary authority or discretion in the conduct of proceedings in court; or .6 your instructions require you to act other than in accordance with law or with the provisions of this Handbook; or .7 you are not authorised and/or otherwise accredited to perform the work required by the relevant instruction; or .8 you are not competent to handle the particular matter or otherwise do not have enough experience to handle the matter; or .9 you do not have enough time to deal with the particular matter, unless the circumstances are such that it would nevertheless be in the client’s best interests for you to accept; or .10 there is a real prospect that you are not going to be able to maintain your independence.

Answer 100

Rules rC21.2, rC21.3 and rC21.4 are intended to reflect the law on conflict of interests and confidentiality and what is required of you by your duty to act in the client’s best interests (CD2), independently (CD4), and maintaining client confidentiality (CD6). You are prohibited from acting where there is a conflict of interest between your own personal interests and the interests of a prospective client. However, where there is a conflict of interest between an existing client or clients and a prospective client or clients or two or more prospective clients, you may be entitled to accept instructions or to continue to act on a particular matter where you have fully disclosed to the relevant clients and prospective clients (as appropriate) the extent and nature of the conflict; they have each provided their informed consent to you acting; and you are able to act in the best interests of each client and independently as required by CD2 and CD4.

Answer 101

Examples of where you may be required to refuse to accept instructions in accordance with Rule rC21.7 include: .1 where the instructions relate to the provision of litigation services and you have not been authorised to conduct litigation in accordance with the requirements of this Handbook; .2 removed .3 where the matter would require you to conduct correspondence with parties other than your client (in the form of letters, faxes, emails or the like), you do not have adequate systems, experience or resources for managing appropriately such correspondence and/or you do not have adequate insurance in place in accordance with Rule rC75 which covers, amongst other things, any loss suffered by the client as a result of the conduct of such correspondence.

Answer 102

Competency and experience under Rule rC21.8 includes your ability to work with vulnerable clients.

Answer 103

Rule rC21.9 recognises that there may be exceptional circumstances when 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 best interests that you accept. Indeed, if you are obliged under the cab rank rule to accept the instructions, you must do so.

Answer 104

Rule rC21.10 is an aspect of your broader obligation to maintain your independence (CD4). Your ability to perform your duty to the court (CD1) and act in the best interests of your client (CD2) may be put at risk if you act in circumstances where your independence is compromised. Examples of when you may not be able to maintain your independence include appearing as an advocate in a matter in which you are likely to be called as a witness (unless the matter on which you are likely to be called as a witness is peripheral or minor in the context of the litigation as a whole and is unlikely to lead to your involvement in the matter being challenged at a later date). If it appears that you are likely to be a witness on a material question of fact, and therefore must withdraw from a case as there is a real prospect that you are not going to be able to maintain your independence (Rules C21.10 and C25), you must also comply with Rule C27.

Answer 105

Where the instructions relate to public access or licensed access work and you are a self-employed barrister you will also need to have regard to the relevant rules at 2.D2. If you are a BSB entity, you should have regard to the guidance to Rule S28.

Answer 106

Where you first accept instructions to act in a matter: .1 you must, subject to Rule rC23, confirm in writing acceptance of the instructions and the terms and/or basis on which you will be acting, including the basis of charging; .2 where your instructions are from a professional client, the confirmation required by rC22.1 must be sent to the professional client; .3 where your instructions are from a client, the confirmation required by rC22.1 must be sent to the client. .4 if you are a BSB entity, you must ensure that the terms under which you accept instructions from clients include consent from clients to disclose and give control of files to the Bar Standards Board or its agent in circumstances where the conditions in rS113.5 are met.

Answer 107

In the event that, following your acceptance of the instructions in accordance with Rule rC22, the scope of the instructions is varied by the relevant client (including where the client instructs you on additional aspects relating to the same matter), you are not required to confirm again in writing acceptance of the instructions or the terms and/or basis upon which you will be acting. In these circumstances, you will be deemed to have accepted the instructions when you begin the work, on the same terms or basis as before, unless otherwise specified.

Answer 108

You must comply with the requirements set out in Rules rC22 and rC23 before doing the work unless that is not reasonably practicable, in which case you should do so as soon as reasonably practicable.

Answer 109

Compliance with the requirement in Rule rC22 to set out the terms and/or basis upon which you will be acting may be achieved by including a reference or link to the relevant terms in your written communication of acceptance. You may, for example, refer the client or professional client (as the case may be) to the terms of service set out on your website or to standard terms of service set out on the Bar Council’s website (in which regard, please also refer to the guidance on the use of the standard terms of service). Where you agree to do your work on terms and conditions that have been proposed to you by the client or by the professional client, you should confirm in writing that that is the basis on which your work is done. Where there are competing sets of terms and conditions, which terms have been agreed and are the basis of your retainer will be a matter to be determined in accordance with the law of contract.

Answer 110

Your obligation under Rule rC23 is to ensure that the basis on which you act has been defined, which does not necessarily mean governed by your own contractual terms. In circumstances where Rule rC23 applies, you should take particular care to ensure that the client is clear about the basis for charging for any variation to the work where it may be unclear. You must also ensure that you comply with the requirements of the Provision of Services Regulations 2009. See, further Rule rC19 (not misleading clients or prospective clients) and the guidance to that rule at gC52 to gC62.

Answer 111

If you are a self-employed barrister a clerk may confirm on your behalf your acceptance of instructions in accordance with Rules rC22 and rC23 above.

Answer 112

When accepting instructions, you must also ensure that you comply with the complaints handling rules set out in Section 2.D.

Answer 113

When accepting instructions in accordance with Rule rC22, confirmation by email will satisfy any requirement for written acceptance.

Answer 114

You may have been instructed in relation to a discrete and finite task, such as to provide an opinion on a particular issue, or to provide ongoing services, for example, to conduct particular litigation. Your confirmation of acceptance of instructions under Rule rC22 should make clear the scope of the instructions you are accepting, whether by cross-referring to the instructions, where these are in writing or by summarising your understanding of the scope of work you are instructed to undertake.

Answer 115

Disputes about costs are one of the most frequent complaints. The provision of clear information before work starts is the best way of avoiding such complaints. The Legal Ombudsman has produced a useful guide “An Ombudsman’s view of good costs service” which can be found on its website.

Answer 116

Where the instructions relate to public access or licensed access work and you are a self-employed barrister, you will also need to have regard to the relevant rules at 2.D2. If you are a BSB entity, you should have regard to the guidance to Rule S28.

Answer 117

Where you have accepted instructions to act but one or more of the circumstances set out in Rules rC21.1 to rC21.10 above then arises, you must cease to act and return your instructions promptly. In addition, you must cease to act and return your instructions if: .1 in a case funded by the Legal Aid Agency as part of Criminal Legal Aid or Civil Legal Aid it has become apparent to you that this funding has been wrongly obtained by false or inaccurate information and action to remedy the situation is not immediately taken by your client; or .2 the client refuses to authorise you to make some disclosure to the court which your duty to the court requires you to make; or .3 you become aware during the course of a case of the existence of a document which should have been but has not been disclosed, and the client fails to disclose it or fails to permit you to disclose it, contrary to your advice.

Answer 118

You may cease to act on a matter on which you are instructed and return your instructions if: .1 your professional conduct is being called into question; or .2 the client consents; or .3 you are a self-employed barrister and: .a despite all reasonable efforts to prevent it, a hearing becomes fixed for a date on which you have already entered in your professional diary that you will not be available; or .b illness, injury, pregnancy, childbirth, a bereavement or a similar matter makes you unable reasonably to perform the services required in the instructions; or c. you are unavoidably required to attend on jury service; .4 you are a BSB entity and the only appropriate authorised individual(s) are unable to continue acting on the particular matter due to one or more of the grounds referred to at Rules rC26.3.a to rC26.3.c above occurring; .5 you do not receive payment when due in accordance with terms agreed, subject to Rule rC26.7 (if you are conducting litigation) and in any other case subject to your giving reasonable notice requiring the non-payment to be remedied and making it clear to the client in that notice that failure to remedy the non-payment may result in you ceasing to act and returning your instructions in respect of the particular matter; or .6 you become aware of confidential or privileged information or documents of another person which relate to the matter on which you are instructed; or .7 if you are conducting litigation, and your client does not consent to your ceasing to act, your application to come off the record has been granted; or .8 there is some other substantial reason for doing so (subject to Rules rC27 to rC29 below).

Answer 119

In deciding whether to cease to act and to return existing instructions in accordance with Rule rC26, you should, where possible and subject to your overriding duty to the court, ensure that the client is not adversely affected because there is not enough time to engage other adequate legal assistance.

Answer 120

If you are working on a referral basis and your professional client withdraws, you are no longer instructed and cannot continue to act unless appointed by the court, or you otherwise receive new instructions. You will not be bound by the cab rank rule if appointed by the court. For these purposes working on a “referral basis” means where a professional client instructs a BSB authorised individual to provide legal services on behalf of one of that professional client’s own clients

Answer 121

You should not rely on Rule rC26.3 to break an engagement to supply legal services so that you can attend or fulfil a nonprofessional engagement of any kind other than those indicated in Rule rC26.3.

Answer 122

When considering whether or not you are required to return instructions in accordance with Rule rC26.6 you should have regard to relevant case law including: English & American Insurance Co Ltd & Others -v- Herbert Smith; ChD 1987; (1987) NLJ 148 and Ablitt - v- Mills & Reeve (A Firm) and Another; ChD (Times, 24-Oct-1995).

Answer 123

If a fundamental change is made to the basis of your remuneration, you should treat such a change as though your original instructions have been withdrawn by the client and replaced by an offer of new instructions on different terms. Accordingly: .1 you must decide whether you are obliged by Rule rC29 to accept the new instructions; .2 if you are obliged under Rule rC29 to accept the new instructions, you must do so; .3 if you are not obliged to accept the new instructions, you may decline them; .4 if you decline to accept the new instructions in such circumstances, you are not to be regarded as returning your instructions, nor as withdrawing from the matter, nor as ceasing to act, for the purposes of Rules rC25 to rC26, because the previous instructions have been withdrawn by the client.

Answer 124

Notwithstanding the provisions of Rules rC25 and rC26, you must not: .1 cease to act or return instructions without either: .a obtaining your client’s consent; or .b clearly explaining to your client or your professional client the reasons for doing so; or .2 return instructions to another person without the consent of your client or your professional client.

Answer 125

You must not withhold your services or permit your services to be withheld: .1 on the ground that the nature of the case is objectionable to you or to any section of the public; .2 on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to you or to any section of the public; .3 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.

Answer 126

As a matter of general law you have an obligation not to discriminate unlawfully as to those to whom you make your services available on any of the statutorily prohibited grounds such as gender or race. See the Equality Rules in the BSB Handbook and the BSB’s website for guidance as to your obligations in respect of equality and diversity. This rule of conduct is concerned with a broader obligation not to withhold your services on grounds that are inherently inconsistent with your role in upholding access to justice and the rule of law and therefore in this rule “discriminate” is used in this broader sense. This obligation applies whether or not the client is a member of any protected group for the purposes of the Equality Act 2010. For example, you must not withhold services on the ground that any financial support which may properly be given to the prospective client for the proceedings in question will be available as part of Criminal Legal Aid and Civil Legal Aid.

Answer 127

If you receive instructions from a professional client, and you are: .1 a self-employed barrister instructed by a professional client; or .2 an authorised individual working within a BSB entity; or .3 a BSB entity and the instructions seek the services of a named authorised individual working for you, and the instructions are appropriate taking into account the experience, seniority and/or field of practice of yourself or (as appropriate) of the named authorised individual you must, subject to Rule rC30 below, accept the instructions addressed specifically to you, irrespective of: .a the identity of the client; .b the 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.

Answer 128

The cab rank Rule rC29 does not apply if: .1 you are required to refuse to accept the instructions pursuant to Rule rC21; or .2 accepting the instructions would require you or the named authorised individual to do something other than in the course of their ordinary working time or to cancel a commitment already in their diary; or .3 the potential liability for professional negligence in respect of the particular matter could exceed the level of professional indemnity insurance which is reasonably available and likely to be available in the market for you to accept; or .4 you are a Queen’s Counsel, and the acceptance of the instructions would require you to act without a junior in circumstances where you reasonably consider that the interests of the client require that a junior should also be instructed; or .5 accepting the instructions would require you to do any foreign work; or .6 accepting the instructions would require you to act for a foreign lawyer (other than a European lawyer, a lawyer from a country that is a member of EFTA, a solicitor or barrister of Northern Ireland or a solicitor or advocate under the law of Scotland); or .7 the professional client: .a is not accepting liability for your fees; or .b represents, in your reasonable opinion, an unacceptable credit risk; or .c is instructing you as a lay client and not in their capacity as a professional client; or .8 you have not been offered a proper fee for your services (except that you shall not be entitled to refuse to accept instructions on this ground if you have not made or responded to any fee proposal within a reasonable time after receiving the instructions); or .9 except where you are to be paid directly by (i) the Legal Aid Agency as part of the Community Legal Service or the Criminal Defence Service or (ii) the Crown Prosecution Service: .a your fees have not been agreed (except that you shall not be entitled to refuse to accept instructions on this ground if you have not taken reasonable steps to agree fees within a reasonable time after receiving the instructions); .b having required your fees to be paid before you accept the instructions, those fees have not been paid; .c accepting the instructions would require you to act other than on (A) the Standard Contractual Terms for the Supply of Legal Services by Barristers to Authorised Persons 2020 as published on the Bar Council’s website; or (B) if you publish standard terms of work, on those standard terms of work.

Answer 129

Rule rC30 means that you would not be required to accept instructions to, for example, conduct litigation or attend a police station in circumstances where you do not normally undertake such work or, in the case of litigation, are not authorised to undertake such work.

Answer 130

In determining whether or not a fee is proper for the purposes of Rule C30.8, regard shall be had to the following: .1 the complexity length and difficulty of the case; .2 your ability, experience and seniority; and .3 the expenses which you will incur.

Answer 131

Further, you may refuse to accept instructions on the basis that the fee is not proper if the instructions are on the basis that you will do the work under a conditional fee agreement or damages based agreement.

Answer 132

Examples of when you might reasonably conclude (subject to the following paragraph) that a professional client represents an unacceptable credit risk for the purposes of Rule C30.7.b include: .1 Where they are included on the Bar Council’s List of Defaulting Solicitors; .2 Where to your knowledge a barrister has obtained a judgment against a professional client, which remains unpaid; .3 Where a firm or sole practitioner is subject to insolvency proceedings, an individual voluntary arrangement or partnership voluntary arrangement; or .4 Where there is evidence of other unsatisfied judgments that reasonably call into question the professional client’s ability to pay your fees. Even where you consider that there is a serious credit risk, you should not conclude that the professional client represents an unacceptable credit risk without first considering alternatives. This will include considering whether the credit risk could be mitigated in other ways, for example by seeking payment of the fee in advance or payment into a third party payment service as permitted by rC74, rC75 and associated guidance.

Answer 133

The standard terms referred to in Rule C30.9.c may be drafted as if the professional client were an authorised person regulated by the Solicitors Regulation Authority (SRA). However, the cab rank rule applies (subject to the various exceptions in Rule C30) to- instructions from any professional client, therefore you may be instructed under the cab rank rule by authorised persons who are regulated by another approved regulator. The BSB expects all authorised persons to be able to access the cab rank rule on behalf of their clients in the same way. Therefore, if you are instructed by an authorised person who is not regulated by the SRA, you are obliged to act on the same terms. You should therefore apply the standard terms referred to in Rule C30.9.c as if (i) the definition of professional client includes that authorised person, and (ii) any references to the SRA or its regulatory arrangements are references to that person’s approved regulator and its regulatory arrangements.

Answer 134

BSB regulated persons are effectively regulated.

Answer 135

The public have confidence in the proper regulation of persons regulated by the Bar Standards Board.

Answer 136

The Bar Standards Board has the information that it needs in order to be able to assess risks and regulate effectively and in accordance with the regulatory objectives.

Answer 137

You must: .1 promptly provide all such information to the Bar Standards Board as it may, for the purpose of its regulatory functions, from time to time require of you, and notify it of any material changes to that information; .2 comply in due time with any decision or sentence imposed by the Bar Standards Board, a Disciplinary Tribunal, the High Court, the First Tier Tribunal, an interim panel, a review panel, an appeal panel, an Independent Decision-Making Panel or a Fitness to Practise Panel; .3 if you are a BSB entity or an owner or manager of a BSB entity and the conditions outlined in rS113.5 apply, give the Bar Standards Board whatever co-operation is necessary: .4 comply with any notice sent by the Bar Standards Board or its agent; and .5 register within 28 days if you undertake work in the Youth Court if you did not register when applying for a practising certificate.

Answer 138

Your obligations under Rule rC64 include, for example, responding promptly to any request from the Bar Standards Board for comments or information relating to any matter whether or not the matter relates to you, or to another BSB regulated person or unregistered barrister.

Answer 139

A notice under rC64.4 refers to a notice under any part of the Legal Services Act 2007, or the Legal Services Act 2007 (General Council of the Bar) (Modification of Functions) Order 2018.

Answer 140

The documents that you are required to disclose pursuant to Rule C64 may include client information that is subject to legal professional privilege. Pursuant to R (Morgan Grenfell & Co Ltd) v Special Commissioner [2003] 1 A.C. 563, referred to in R (Lumsdon) v Legal Services Board [2014] EWHC 28 (Admin) at [73], the BSB is entitled to serve you with a notice for production of those documents. Where you are being required to report serious misconduct by others and legal professional privilege applies, this will override the requirement to report serious misconduct by another. However, the BSB may subsequently serve you with a notice for production of documents in which case the same principles set out above apply. For the avoidance of doubt, none of this casts any doubt on your entitlement to withhold from the BSB any material that is subject to your own legal privilege (such as legal advice given to you about your own position during a BSB investigation).

Answer 141

You must report promptly to the Bar Standards Board if: .1 you are charged with an indictable offence; in the jurisdiction of England and Wales or with a criminal offence of comparable seriousness in any other jurisdiction; .2 subject to the Rehabilitation of Offenders Act 1974 (as amended) you are convicted of, or accept a caution, for any criminal offence, in any jurisdiction, other than a minor criminal offence; .3 you (or an entity of which you are a manager) to your knowledge are the subject of any disciplinary or other regulatory or enforcement action by another Approved Regulator or other regulator, including being the subject of disciplinary proceedings; .4 you are a manager of a regulated entity (other than a BSB entity) which is the subject of an intervention by the approved regulator of that body; .5 you are a registered European lawyer and: .a to your knowledge any investigation into your conduct is commenced by your home regulator; or .b any finding of professional misconduct is made by your home regulator; or .c your authorisation in your home state to pursue professional activities under your home professional title is withdrawn or suspended; or .d you are charged with a disciplinary offence. .6 any of the following occur: .a bankruptcy proceedings are initiated in respect of or against you; .b director’s disqualification proceedings are initiated against you; .c a bankruptcy order or director’s disqualification order is made against you; .d you have made a composition or arrangement with, or granted a trust deed for, your creditors; .e winding up proceedings are initiated in respect of or against you; .f you have had an administrator, administrative receiver, receiver or liquidator appointed in respect of you; .g administration proceedings are initiated in respect of or against you; .7 you have committed serious misconduct; .8 you become authorised to practise by another approved regulator.

Answer 142

In circumstances where you have committed serious misconduct you should take all reasonable steps to mitigate the effects of such serious misconduct.

Answer 143

For the avoidance of doubt rC65.2 does not oblige you to disclose cautions or criminal convictions that are “spent” under the Rehabilitation of Offenders Act 1974 unless the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) applies. However, unless the caution or conviction is immediately spent, you must notify the BSB before it becomes spent.

Answer 144

Subject to your duty to keep the affairs of each client confidential and subject also to Rules rC67 and rC68, you must report to the Bar Standards Board if you have reasonable grounds to believe that there has been serious misconduct by a barrister or a registered European lawyer, a BSB entity, manager of a BSB entity or an authorised (non-BSB) individual who is working as a manager or an employee of a BSB entity.

Answer 145

You must never make, or threaten to make, a report under Rule rC66 without a genuine and reasonably held belief that Rule rC66 applies.

Answer 146

You are not under a duty to report serious misconduct by others if: .1 you become aware of the facts giving rise to the belief that there has serious misconduct from matters that are in the public domain and the circumstances are such that you reasonably consider it likely that the facts will have come to the attention of the Bar Standards Board; or .2 you are aware that the person that committed the serious misconduct has already reported the serious misconduct to the Bar Standards Board; or .3 the information or documents which led to you becoming aware of that other person’s serious misconduct are subject to legal professional privilege; or .4 you become aware of such serious misconduct as a result of your work on a Bar Council advice line.

Answer 147

You must not victimise anyone for making in good faith a report under Rule C66.

Answer 148

It is in the public interest that the Bar Standards Board, as an Approved Regulator, is made aware of, and is able to investigate, potential instances of serious misconduct. The purpose of Rules rC65.7 to rC69, therefore, is to assist the Bar Standards Board in undertaking this regulatory function.

Answer 149

Serious misconduct includes, without being limited to: .1 dishonesty (CD3); .2 assault or harassment (CD3 and/or CD5 and/or CD8); .3 seeking to gain access without consent to instructions or other confidential information relating to the opposing party’s case (CD3 and/or CD5); or .4 seeking to gain access without consent to confidential information relating to another member of chambers, member of staff or pupil (CD3 and/or CD5); .5 encouraging a witness to give evidence which is untruthful or misleading (CD1 and/or CD3); .6 knowingly or recklessly misleading, or attempting to mislead, the court or an opponent (CD1 and/ or CD3); or .7 being drunk or under the influence of drugs in court (CD2 and/or CD7); or .8 failure to report promptly to the Bar Standards Board pursuant to rC65.1-rC65.5 and/or rC66 above or if; * director’s disqualification proceedings are initiated against you; * a director’s disqualification order is made against you; * winding up proceedings are initiated in respect of or against you; * you have had an administrator, administrative receiver, receiver or liquidator appointed in respect of you; * administration proceedings are initiated in respect of or against you; .9 a breach of rC67 above; for example, reporting, or threatening to report, another person as a litigation tactic or otherwise abusively; or merely to please a client or any other person or otherwise for an improper motive; .10 conduct that poses a serious risk to the public.

Answer 150

If you believe (or suspect) that there has been serious misconduct, then the first step is to carefully consider all of the circumstances. The circumstances include: .1 whether that person’s instructions or other confidential matters might have a bearing on the assessment of their conduct; .2 whether that person has been offered an opportunity to explain their conduct, and if not, why not; .3 any explanation which has been or could be offered for that person’s conduct; .4 whether the matter has been raised, or will be raised, in the litigation in which it occurred, and if not, why not.

Answer 151

Having considered all of the circumstances, the duty to report arises if you have reasonable grounds to believe there has been serious misconduct. This will be so where, having given due consideration to the circumstances, including the matters identified at Guidance gC97, you have material before you which as it stands establishes a reasonably credible case of serious misconduct. Your duty under Rule rC66 is then to report the potential instance of serious misconduct so that the Bar Standards Board can investigate whether or not there has in fact been misconduct.

Answer 152

Circumstances which may give rise to the exception from the general requirement to report serious misconduct set out in Rule rC68.1 include for example where misconduct has been widely reported in the national media. In these circumstances it would not be in the public interest for every BSB regulated person and unregistered barrister to have an obligation to report such serious misconduct.

Answer 153

In Rule rC68.4 “work on the Bar Council advice line” means: .1 dealing with queries from BSB regulated persons and unregistered barristers who contact an advice line operated by the Bar Council for the purposes of providing advice to those persons; and .2 either providing advice to BSB regulated persons and unregistered barristers in the course of working for an advice line or to any individual working for an advice line where (i) you are identified on the list of BSB regulated persons maintained by the Bar Council as being permitted to provide such advice (the “approved list”); and (ii) the advice which you are being asked to provide to the individual working for an advice line arises from a query which originated from their work for that service; and .3 providing advice to BSB regulated persons and unregistered barristers where any individual working for an advice line arranges for you to give such advice and you are on the approved list. .4 for the purposes of Rule C68, the relevant advice lines are: – the Ethical Queries Helpline; – the Equality and Diversity Helpline; – the Remuneration Helpline; and -the pupillage helpline

Answer 154

Rule rC68.4 has been carved out of the general requirement to report serious misconduct of others because it is not in the public interest that the duty to report misconduct should constrain BSB regulated persons or unregistered barristers appointed by or on behalf of the Bar Council to offer ethical advice to others from doing so or inhibit BSB regulated persons or unregistered barristers needing advice from seeking it. Consequently, BSB regulated persons or unregistered barristers appointed by or on behalf of the Bar Council to offer ethical advice to BSB regulated persons or unregistered barristers through a specified advice service will not be under a duty to report information received by them in confidence from persons seeking such advice, subject only to the requirements of the general law. However, in circumstances where Rule C68.4 applies, the relevant BSB regulated person or unregistered barrister will still be expected to encourage the relevant BSB regulated person or unregistered barrister who has committed serious misconduct to disclose such serious misconduct to the Bar Standards Board in accordance with Rule C65.7.

Answer 155

Misconduct which falls short of serious misconduct should, where applicable, be reported to your HOLP so that they can keep a record of noncompliance in accordance with Rule rC96.4.

Answer 156

You must permit the Bar Standards Board, or any person appointed by them, reasonable access, on request, to inspect: .1 any premises from which you provide, or are believed to provide, legal services; and .2 any documents or records relating to those premises and your practice, or BSB entity, and the Bar Standards Board, or any person appointed by them, shall be entitled to take copies of such documents or records as may be required by them for the purposes of their functions.

Answer 157

You must give the Legal Ombudsman all reasonable assistance requested of you, in connection with the investigation, consideration, and determination, of complaints made under the Ombudsman scheme.

Answer 158

Once you are aware that you (if you are a self-employed barrister or a BSB entity) or the BSB entity within which you work (if you are an authorised individual or manager of such BSB entity) will cease to practise, you shall effect the orderly wind-down of activities, including: .1 informing the Bar Standards Board and providing them with a contact address; .2 notifying those clients for whom you have current matters and liaising with them in respect of the arrangements that they would like to be put in place in respect of those matters; .3 providing such information to the Bar Standards Board in respect of your practice and your proposed arrangements in respect of the winding down of your activities as the Bar Standards Board may require.

Answer 159

You must: .1 ensure that you have adequate insurance (taking into account the nature of your practice) which covers all the legal services you supply to the public; and .2 if you are a BSB authorised person or a manager of a BSB entity then in the event that the Bar Standards Board, by any notice it may from time to time issue under this Rule C76, stipulates a minimum level of insurance and/or minimum terms for the insurance which must be taken out by BSB authorised persons, you must ensure that you have or put in place within the time specified in such notice, insurance meeting such requirements as apply to you.

Answer 160

Where you are acting as a self-employed barrister, you must be a member of BMIF, unless: .1 you are a pupil who is covered by your pupil supervisor’s insurance; or .2 you were called to the Bar under Rule Q25, in which case you must either be insured with BMIF or be covered by insurance against claims for professional negligence arising out of the supply of your services in England and Wales in such amount and on such terms as are currently required by the Bar Standards Board, and have delivered to the Bar Standards Board a copy of the current insurance policy, or the current certificate of insurance, issued by the insurer.

Answer 161

If you are a member of BMIF, you must: .1 pay promptly the insurance premium required by BMIF; and .2 supply promptly such information as BMIF may from time to time require pursuant to its rules.

Answer 162

Where you are working in a BSB entity, you will satisfy the requirements of Rule rC76.1 so long as the BSB entity has taken out insurance, which covers your activities. A BSB entity will have to confirm each year that it has reviewed the adequacy of its insurance cover on the basis of a risk analysis and that they have complied with this rule.

Answer 163

Any notice issued under Rule rC76 will be posted on the Bar Standards Board’s website and may also be publicised by such other means as the Bar Standards Board may judge appropriate. Notices issued under Rule C76, which stipulate minimum terms of cover for self-employed barristers and BSB entities, are currently in force and available on the Bar Standards Board’s website. The Bar Standards Board’s requirements in respect of professional indemnity insurance, including the minimum terms, are concerned with ensuring consumer protection, specifically that there is adequate cover for liabilities which BSB regulated persons may incur to their clients or other parties to whom they may owe duties when performing their legal services. This includes claims for contribution which third parties, such as instructing solicitors, may make on the basis that the BSB regulated person has such a liability to a mutual client. However, Rule C76.1 of the Handbook does not require BSB regulated persons to carry insurance for other types of liability, which do not relate to their liabilities towards consumers, such as a contractual liability to instructing solicitors in respect of losses incurred by the solicitor that are not based on any liability the solicitor has in turn incurred to the client. Nor are the minimum terms concerned with the latter type of liability and whether and on what terms to seek to insure against such exposure is a commercial judgment for BSB regulated persons to make. You should however ensure that you are aware of and comply with any general legal requirements for you to carry other types of insurance than professional indemnity cover. BSB regulated persons considering excluding or limiting liability should consider carefully the ramifications of the Unfair Contract Terms Act 1977 and other legislation and case law. If a BSB regulated person is found by the court to have limited liability in a way which is in breach of the Unfair Contract Terms Act, that might amount to professional misconduct. BSB regulated persons should regularly review the amount of their professional indemnity insurance cover, taking into account the type of work which they undertake and the likely liability for negligence. They should be aware that claims can arise many years after the work was undertaken and that they would be prudent to maintain adequate insurance cover for that time since cover operates on a “claims made” basis and as such it is the policy and the limits in force at the time a claim is made that are relevant, not the policy and limits in force when the work was undertaken. They should also bear in mind the need to arrange run-off cover if they cease practice.

Answer 164

Where you are working in an authorised (non-BSB) body, the rules of the approved regulator of that body will determine what insurance the authorised (non-BSB) body must have.

Answer 165

Where you are working as an employed barrister (non-authorised body), the rule does not require you to have your own insurance if you provide legal services only to your employer. If you supply legal services to other people (to the extent permitted by the Scope of Practice and Authorisation, and Licensing Rules set out at Section S.B you should consider whether you need insurance yourself having regard to the arrangements made by your employer for insuring against claims made in respect of your services. If your employer already has adequate insurance for this purpose, you need not take out any insurance of your own. You should ensure that your employer’s policy covers you, for example, for any pro-bono work you may do.

Answer 166

Where you are a registered European lawyer, the rule does not require you to have your own insurance if: .1 you provide to the Bar Standards Board evidence to show that you are covered by insurance taken out or a guarantee provided in accordance with the rules of your home State; and .2 the Bar Standards Board is satisfied that such insurance or guarantee is fully equivalent in terms of conditions and extent of cover to the cover required pursuant to Rule rC76. However, where the Bar Standards Board is satisfied that the equivalence is only partial, the Bar Standards Board may require you to arrange additional insurance or an additional guarantee to cover the elements which are not already covered by the insurance or guarantee contracted by you in accordance with the rules of your home state

Answer 167

Where you outsource to a third party any support services that are critical to the delivery of any legal services in respect of which you are instructed: .1 any outsourcing does not alter your obligations to your client; .2 you remain responsible for compliance with your obligations under this Handbook in respect of the legal services; .3 you must ensure that such outsourcing is subject to contractual arrangements which ensure that such third party: .a is subject to confidentiality obligations similar to the confidentiality obligations placed on you in accordance with this Handbook; .b complies with any other obligations set out in this Code of Conduct which may be relevant to or affected by such outsourcing; .c processes any personal data in accordance with your instructions; .d is required to allow the Bar Standards Board or its agent to obtain information from, inspect the records (including electronic records) of, or enter the premises of such third party in relation to the outsourced activities or functions, and; .e processes any personal data in accordance with those arrangements, and for the avoidance of doubt, those arrangements are compliant with any relevant data protection laws.

Answer 168

Rule C86 applies to the outsourcing of clerking services.

Answer 169

Rule C86 does not apply where the client enters into a separate agreement with the third party for the services in question.

Answer 170

Rule C86 does not apply where you are instructing a pupil or a devil to undertake work on your behalf. Instead rC15 will apply in hose circumstances.

Answer 171

Removed from 11 June 2018. s

Answer 172

You must take reasonable steps to ensure that: .1 your practice is efficiently and properly administered having regard to the nature of your practice; and .2 proper records of your practice are kept. When deciding how long records need to be kept, you will need to take into consideration various requirements, such as those of this Handbook (see, for example, Rules C108, C129 and C141), any relevant data protection law and HM Revenue and Customs. You may want to consider drawing up a Records Keeping policy to ensure that you have identified the specific compliance and other needs of your practice.