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Professional Ethics > You and your client > Flashcards

You and your client Flashcards

1
Q

What is the definition of a client?

A

a person for whom you act, and where the context permits, this includes prospective and former clients

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2
Q

What is outcome oC10?

A

clients receive a competent standard of work and service

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3
Q

What is outcome oC11

A

clients best interests are protected and promoted by those acting for them

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4
Q

what is outcome oC12?

A

BSB, authorised persons don’t accept instructions where there would be a conflict of interest

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5
Q

What is outcome oC13?

A

clients know what to expect and understand the advice they are given

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6
Q

what is outcome oC14?

A

care given to ensure the needs of vulnerable clients are accounted for and met

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7
Q

what is outcome oC15?

A

clients have confidence in those who are instructed on their behalf

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8
Q

what is outcome oC16?

A

instructions are not accepted, refused or returned in circumstances which adversely affect the administration of justice, access to justice or BI or client

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9
Q

What is outcome oC17?

A

clients and barristers are clear about circumstances in which instructions may be accepted or returned

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10
Q

what is outcome oC19?

A

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

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11
Q

What is outcome oC20?

A

clients understand who is responsible for work done for them

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12
Q

What does your duty to act in the best interests of every client include?

A
  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
  3. you must do so without regard to the consequences of 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 affair, except for such disclosures as are required or permitted by law or to which your client gives informed consent.
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13
Q

What is your duty to act in the best interests of each client subject to?

A

Your duty to the court and to act with honest and integrity and maintain your independence.

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14
Q

Who is your duty to?

A

your client, not the professional client or intermediary

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15
Q

When can you accept instructions to act for more than one client?

A

if you are able to act in the best interests of each client as if that client were your only client

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16
Q

What does a competent standard of service include?

A
  1. treating each client with courtesy and consideration
  2. seeking to advise your client in terms they can understand
  3. taking all reasonable steps to avoid incurring unnecessary expense; and
  4. reading your instructions promptly. This is particularly important incase there is a time limit/ limitation period
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17
Q

What should you do to help you to provide a competent standard of work?

A

you should keep your professional knowledge and skills up to date, this can be done by taking part in professional development and educational activities that maintain and further develop your competence and performance.

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18
Q

What should you consider about the standard that you need to provide when you have a lay client?

A

they may not be familiar with legal processes and may find them difficult or stressful. You should do what you can to ensure that the client understands the process and what to expect from it and you.

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18
Q

What should you consider about the standard that you need to provide when you have a lay client?

A

they may not be familiar with legal processes and may find them difficult or stressful. You should do what you can to ensure that the client understands the process and what to expect from it and you.

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19
Q

Why is information that a client tells you confidential?

A

Because it is privileged.

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20
Q

What is the exception to the duty of confidentiality?

A

where disclosure is required or permitted by law e.g. under the Proceeds of Crime Act 2002

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21
Q

If you are a pupil or devilling work for a self-employed barrister, how do you treat the client?

A

As if they are your client

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22
Q

What does your duty to act in the best interests of the client include regarding alternative representation?

A

To consider whether your client’s best interests are served by different legal representation and to advise the client to that effect.

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23
Q

What should you advise your client if you believe they should get alternative representation?

A

That they should be represented by:

  1. A different advocate or legal representative, whether more senior or junior than you, or with a 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.
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24
Q

CD 2 and rules C15.5 and C17 require you to do when a solicitor has been acting negligently?

A

To put your clients interests above your own and advise them of the negligence.

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25
Q

What should you do if you are unable/ there is an appreciable risk that you will be unable to undertake the instructions?

A

To inform your professional client, or your client as far as reasonably possible in sufficient time to enable appropriate steps to be taken to protect the clients interests.

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26
Q

If you are offering legal services what musth you not mislead any person to whom you are supplying those services about?

A
  1. the nature and scope of the legal services which you are offering 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 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 yo are covered by insurance against claim for professional negligence.
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27
Q

What must be made clear to clients where self-employed barristers share premises with solicitors or other professionals?

A

that they remain separate and independent from one another and are not responsible for one another’s work

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28
Q

What must any established entity make clear to clients?

A

That they themselves are not able to supply reserved legal activities and are not subject to regulation by the BSB.

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29
Q

What must you be careful with when it comes to advertising?

A

knowingly or recklessly publishing advertising material which is inaccurate or likely to mislead any person could cause you to be in breach of rule c19

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30
Q

If you carry out public access work, how could you be in breach of rule c 19?

A

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.

31
Q

If you are self-employed would you have breached a rule if you charged at your own hourly rate work done by a devil or pupil?

A

Ye

32
Q

If you are an unregistered barrister, what must you do with regards to providing legal services?

A

you must not mislead a client into thinking that you were providing legal services to them as a barrister or subject to the same regulation as a practising barrister

33
Q

Would you be in breach of a rule if you are an unregistered barrister and you implied that you are covered by insurance if you are not?

A

Yes

34
Q

What should you not do as a pupil?

A

hold yourself out as a member of chambers or permit your name to appear as such.

35
Q

What is the rule on personal responsibility?

A

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 matters on which you are instructed and be able to justify your decisions and actions.

36
Q

What is rule c20?

A

the rule on personal responsibility

37
Q

Are you personally responsible for any work that you out-source?

A

Yes, you still remain personally responsible for this work.

38
Q

What else are you personally responsible for?

A

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

39
Q

When must you not accept instructions to act in a particular matter?

A
  1. if due to any existing or previous instructions you would be unable to act in the best interests of the client
  2. there is a conflict of interest between your own personal interests and the interests of the prospective client in respect of the particular matter
  3. there is a conflict of interest between the prospective client and one or more of your former clients, unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances
  4. there is a risk that confidential information may be relevant to such a matter that if obliged to maintain confidentiality you could not act in the best interests of the client if you re not given consent to disclose that information.
  5. your instructions seek to limit your ordinary authority or discretion in court proceedings
  6. your instructions require you to act in a way that is not in accordance with the law
  7. you are not authorised or accredited to perform the work required by the instructions
  8. you are not competent/ do not have enough experience to handle the particular matter
  9. you do not have enough time to deal with the particular matter, unless the circumstances are such that it would be in the clients best interests for you to accept; or
  10. there is a real prospect that you are going to be unable to maintain your independence
40
Q

If there is a conflict of interest, what are you prohibited from doing?

A

you are prohibited from acting for the client

41
Q

What is the situation where instructions are delivered so late that no suitable, competent advocate would have adequate time to prepare?

A

you are not required to refuse the instructions, if you are obliged to accept them under the cab rank rule then you must do so.

42
Q

Can you be an advocate in a matter where you are likely to be called as a witness?

A

No.

43
Q

What are the situations where you should not accept instructions due to conflicts of interest?

A
  1. if your own personal interests and the interests of the prospective client conflict
  2. if the interests of your prospective client and a former or existing client conflict unless all of the clients give their informed consent to you acting in those particular circumstances
  3. information that is confidential to a former or existing client may be relevant that if obliged to maintain confidentiality you couldn’t act in the best interests of the prospective client.
44
Q

What is the test for conflicts of interest?

A

the test is a “real risk” of a conflict of interest

45
Q

What should you do if there is some risk of a conflict of interest?

A

you should consider the degree of risk and refuse if you think that it is real

46
Q

what should you do if there is a conflict of interest?

A

you should refuse the case

47
Q

what should you do if there is a risk of a conflict arising at some point in the future?

A

you should refuse the case

48
Q

Can a client give informed consent if the conflict arises between the barrister and client?

A

No, informed consent an only be given if the conflict arises between two clients

49
Q

What must you do when you first accept instructions to act in a matter?

A

you must confirm in writing acceptance of the instructions, including the terms and/or basis on which you will be acting and the basis of charging.

50
Q

Who should you confirm your acceptance of instructions to?

A

if you are instructed by a professional client, the acceptance must be sent to them, if the instructions are directly from a client, the confirmation must be sent to them

51
Q

If you are a BSB authorised body what must you ensure is in the terms under which you accept instructions from the clients?

A

consent from the client to disclose and give control of files to the BSB or its agent in circumstances where particular conditions are met.

52
Q

Do you have to have your own terms that are set out when accepting instructions?

A

No, it is sufficient to provide a link/reference to the BSB’s standard terms. You just have to make it clear on what basis/terms the work is being done, it doesn’t have to be to your own terms.

53
Q

Can a clerk confirm your acceptance of instructions on your behalf?

A

Yes

54
Q

What else must you remember to do when accepting instructions?

A

that you comply with the complaints handling rule

55
Q

Will an email constitute written acceptance?

A

Yes it does

56
Q

What else must your acceptance do if you are asked to instruct on a particular issue?

A

They must set out the scope of the instructions that you are accepting

57
Q

When must you return instructions?

A
  1. in a case funded by the legal aid agency and it has become apparent to your that this funding has been wrongly obtained by false/inaccurate information and action to remedy the situation is not immediately taken;
  2. the client refuses to authorise you to make some disclosure to the court which your duty to the court requires you to make
  3. you become aware during the course of a case of the existence fo a document that should have been but has not been disclosed and the client does not give you permission to disclose it
58
Q

When may you cease to act?

A
  1. where your professional conduct is being called into question;
  2. the client consents;
  3. you are a self-employed barrister and despite all reasonable efforts, a hearing becomes fixed on a date on which you already have something entered into your professional diary;
  4. you are a self-employed barrister and illness, injury, pregnancy, childbirth or a bereavement makes you unable to reasonably perform the services required
  5. you are required to attend on jury service
  6. you do not receive payment when due in accordance with your terms and conditions
59
Q

What happens if you are working on a case and your solicitor withdraws?

A

you are no longer instructed and cannot continue to act unless appointed by the court or you otherwise receive new instructions. You are not bound by the cab rank rule if appointed by the court

60
Q

What does it mean to be working on a referral basis?

A

where a professional client instructs a BSB authorised individual to provide legal services on behalf of one of that professional client’s own clients.

61
Q

What must you do before returning instructions?

A
  1. seek clients consent;
    OR/
  2. explain to the client why you are returning the instructions.
62
Q

What is the requirement not to discriminate?

A

you must not withhold your services or permit them to be withheld:

  1. on hr ground that the nature of the case is objectionable to you or any section of the public
  2. on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to you or 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.
63
Q

What grounds can you not discriminate on?

A

any statutorily prohibited grounds such as gender or race.

64
Q

What is the cab rank rule?

A

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 authorised body; or
3. a BSB authorised body and the instructions seek the services of a named authorised individual working for you
And the instructions are appropriate taking into account the experience and field of practice of the individual you must accept the instructions addressed to you regardless of:
1. the identity of the client
2. the nature of the case to which the instructions relate
3. whether the client is paying privately or is publicly funded
4. any belief or opinion which you may have formed as to character, reputation, cause, conduct, guilty or innocence of the client.

65
Q

When does the cab rank rule not apply?

A

If:

  1. you are required to refuse to accept the instructions for other reasons;
  2. accepting the instructions would require you to do something other than in the course of their ordinary working time or to cancel a commitment already in their diary
  3. the potential liability for professional negligence could exceed the level of professional indemnity insurance
  4. you are a QC and would require a junior but would not have one in the circumstances
  5. accepting the instructions would require you to do any foreign work
  6. accepting the instructions would required you to act for a foreign lawyer
  7. the professional client is not accepting liability for your fees, represents an unacceptable credit risk or is instructing you as a lay client not as a professional one.
  8. you have not been offered a proper fee for your services
66
Q

What will be considered when deciding whether a fee is appropriate?

A
  1. the complexity, length and difficulty of the case;
  2. your ability, experience and seniority; and
  3. the expenses which you will incur
67
Q

Can you refuse instructions if they are on the basis that you do the work under a conditional fee agreement or damages based agreement?

A

Yes

68
Q

What are the examples of when you might reasonably conclude that a professional client is an unacceptable credit risk?

A
  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 paid;
  3. where a firm or sole practitioner is subject to insolvency proceedings; or
  4. where there is evidence of other unsatisfied judgments that reasonably call into question the ability of the professional client to pay your fees.
69
Q

Do you need to consider any alternatives if a professional clients seems likely to be an unacceptable credit risk?

A

Yes, you should should consider whether the credit risk could be mitigated in other ways, by seeking payment of the fee in advance or payment into a third party payment service.

70
Q

What are the Quality Assurance Scheme for Advocate Rules?

A

you must not take criminal advocacy unless you have provisional accreditation or full accreditation in accordance with these QASA rules and the QASA handbook.

71
Q

If a barrister does not have QASA accreditation, when are they permitted to undertake criminal advocacy?

A
  1. in hearings which primarily involve advocacy which is outside of the definition of criminal advocacy; or
  2. if they have been instructed specifically as a result of their specialism in work outside of the definition of criminal advocacy.
72
Q

If you are granted provisionsl QASA accreditation, when must you apply to convert this to full accreditation?

A

within 12 or 24 months of the date on which provisional accreditation was granted

73
Q

How long is full accreditation valid for?

A

for 5 years from the date on which it was granted

74
Q

What information is necessary to support an application for QASA accreditation?

A
  1. completing the relevant application form
  2. submitting such info in support of the application
  3. paying the appropriate fee in the amount determined

Professional Ethics (8 decks)

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