Unit 2 subject 2

Question 1

What about Honesty integrity elements RC9

Answer 1

.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;

Question 2

POCA DISCLOSURE

Answer 2

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

Question 3

When can you return instructions and cease to act

Answer 3

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)

Question 4

When can you accept instructions where there may be a conflict between clients

Answer 4

When you get informed consent from them both and can act in best interests

Question 5

When must you withdraw for independence reasons

Answer 5

If it appears that you are likely to be a witness on a material question of fact, not something minor or unchallenged

Question 6

What happens if your remuneration changes

Answer 6

It’s treated as a withdrawal and reissuing of instructions. You reassess whether you’re bound to accept.

Question 7

What must you do if returning instructions

Answer 7

Explain to client. OR get their agreement. Can’t return instructions without sol or client agreement.

Question 8

Conditional fee arrangement

Answer 8

Allows you to avoid cab rank rule if need be

Question 9

Credit risk factors

Answer 9

Unpaid fee for another barrister, unsatisfied judgments, list of defaulting solicitors, insolvency proceedings. Should try to find other arrangements first.