You and Your Practice

Question 1

What is the rule on client money?

Answer 1

except where you are acting in your capacity as a manager of an authorised body, you must not receive, c control or handle client money apart from what the client pays you for your services

Question 2

What must you do if you make use of a third party payment service?

Answer 2

1. ensure that the service you use will not result in your receiving, controlling or handling client money;
2. only use the service for payments to or from or on behalf of your client that are made in respect of legal services, such as fees, disbursements or settlement monies; and
3. take reasonable steps to check that making use of the service is consistent with your duty to act competently and in your client’s best interests.

Question 3

What is included as receiving, controlling or handling client money?

Answer 3

entering into any arrangement which gives you de facto control over the use and/or destination of funds provided by or for the benefit of your client or intended by another party to be transmitted to your client, whether or not those funds are beneficially owned by your client or whether or not held in an account of yours.

Question 4

When will a client’s consent be deemed to be given in the case of large withdrawals?

Answer 4

1. the client has given informed consent to an arrangement which enables withdrawals to be made after the client has received an invoice; and
2. the client has not objected to the withdrawal within a pre-agreed reasonable period

Question 5

Is a fixed fee paid in advance classed as client money?

Answer 5

No

Question 6

What should you have regard to when deciding to request an upfront fixed fee from your prospective client?

Answer 6

1. estimate accurately the likely time commitment and only take payment when you are satisfied that it is reasonable payment for the work being done, in the case of public access for, it is suitable for you to undertake
2. if the amount of work required is clear, you should consider staged payments rather than a fixed fee in advance
3. you should never accept an upfront fee in advance of considering whether it is appropriate for you to take the case and considering whether you will be able to undertake the work in a reasonable time scale.
4. if the client can be reasonably expected to understand such an arrangement you my agree that when the work has been done you will pay the Clie t any difference between the fixed fee and the actual fee that has been incurred.
5. you are expected to confirm in writing the acceptance of instructions and the terms or basis on which you are acting including the basis of charging.

Question 7

What steps should you take in order to satisfy yourself that a client is safe in using the third party payment service?

Answer 7

1. ensured that the payment service is authorised or regulated as a payment service by the FCA and taken reasonable steps to satisfy yourself that is in good standing with the FCA;
2. if the payment service is classified as a small payment institution ensured that it has arrangements to safeguard clients’ funds or adequate insurance arrangements
3. satisfied yourself that the terms of the service are such as to ensure that any money paid in by on behalf of the client can only be paid out with the client’s consent.
4. informed your client that moneys held by the payment service provider are not covered by the FSCS.

Question 8

What is the rule on insurance?

Answer 8

1. ensure that you have adequate insurance which covers all the legal services that you supply to the public
2. if you are a BSB authorised person or a manager of a BSB authorised body, then in the event that the BSB, by any notice it may from time to time issue under this rule, stipulates a minimum level of insurance/ minimum terms for the insurance which must be taken out by the 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.

Question 9

When must you be a member of BMIF?

Answer 9

If you are a self-employed barrister, unless:

1. you are a pupil who is covered by his pupil supervisor’s insurance
2. you were called to the Bar under rule Q98, 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 BSB, and have delivered to the BSB a copy of the current insurance policy, or the current certificate of insurance issued by the insurer.

Question 10

What must you do if you are a member of BMIF?

Answer 10

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

Question 11

How will you satisfy the rules on insurance if you work in a BSB authorised body?

Answer 11

so long as the BSB authorised body has taken out insurance, which covers your activities. A BSB authorised body will have to confirm each year that it has reviewed the adequacy of its insurance cover on the basis of a risk analysis.

Question 12

What is the rule regarding associations with others?

Answer 12

you may not do anything, practising in an association, which you are otherwise prohibited from doing. where you ate in an association on more than a one-off bassi, you must notify the BSB that you are in an association, and provide such details of that association as are required by the BSB.

Question 13

What must you do if you have a material commercial interest in an organisation to which you plan to refer a client?

Answer 13

1. tell the client in writing about your interest in that organisation before you refer the client; and
2. keep a record of your referrals to any such organisation for review by the BSB on request.

Question 14

If you have a material commercial interest in an organisation which is proposing to refer a matter to you, what must you do?

Answer 14

1. tell the client in writing about your interest in that organisation before you accept such instructions;
2. make a clear agreement with that organisation or other public statement about how relevant issues, such as conflicts of interest, will be dealt with; and
3. keep on record of referrals received from any such organisation for review by the BSB on reasonable request.

Question 15

What must you do if you refer a client to a third party which is not a BSB authorised person or an authorised person?

Answer 15

ensure that the client is not wrongly led to believe that the third party is subject to regulation by the BSB or by any other approved regulator.

Question 16

What is classed as a material commercial interest?

Answer 16

an interest which an objective observer with knowledge of the salient facts would reasonably consider might potentially influence your judgment.

Question 17

What must you not use an association with the purpose of doing?

Answer 17

evading rules that would otherwise apply to you

Question 18

When will you bring yourself and the profession into disrepute?

Answer 18

if you are personally involved in arrangements which breach the restrictions imposed by the LSA 2007 on those who can provide reserved legal activities.

Question 19

What is the purpose of the rule on associations?

Answer 19

the public should be clear who is responsible for doing work and about the extent to which that person is regulated in doing it.

Question 20

What is the rule on outsourcing?

Answer 20

where you outsource to a third party any support services that are critical to the delivery of any legal services:

1. any outsourcing does not alter your obligations to your client
2. you remain responsible for compliance with your obligations under the BSB Handbook in respect of legal services
3. you must ensure that the outsourcing is subject to contractual arrangements which ensure that the third party is subject to confidentiality obligations, complies with other obligations under the Handbook, processes personal data in accordance with your instructions and is required to allow the BSB to obtain information from/ inspect the records of or enter the premises of the third party

Question 21

Does the rule on outsourcing apply to the outsourcing of clerking services?

Answer 21

Yes

Question 22

When does the rule on outsourcing not apply?

Answer 22

where the client enters into a separate agreement with the third party for the services in question.

Question 23

Does the rule on outsourcing apply where you are instructing a pupil or devil on your behalf?

Answer 23

No

Question 24

Does outsourcing relieve you of your obligations to comply with the DPA?

Answer 24

No, as you will still remain the data controller for the personal data in question.

Question 25

What is the rule on the administration and conduct of self-employed practice?

Answer 25

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

Question 26

What rules apply to the administration of fees?

Answer 26

You must ensure that adequate records supporting the fees charged or claimed in a case are kept at least until the later of the following:

1. your fees have been paid; and any determination or assessment of costs in the case has been completed and the time for lodging an appal against the assessment or determination has expired without any such appeal being lodged or any such appeal has been finally determined.
2. provide your client with such records or details of the work you have done as may reasonably be required for the purposes of verifying your charges.

Question 27

What is the rule relating to the provision of information to clients?

Answer 27

you must notify clients in writing when you are instructed or at the next appropriate opportunity:

1. of their right to make a complaint, including their right to complain to the legal ombudsman, how and to whom they complain and as to any time limits for such a complaint.
2. if you are doing referral work, that the lay client may complain directly to chambers or the BSB authorised body without going through solicitors.

Question 28

If you are doing referral work, do you need to give your professional client a separate and specific letter dealing with complaints?

Answer 28

No, it is enough to set this out in your ordinary terms and conditions when you send written notice of your acceptance of instructions.

Question 29

What must be done in response to complaints?

Answer 29

all complaints must be acknowledged promptly. when you acknowledge a complaint, you must give the complainant:

1. the name of the person who will deal with the complaint and a description of that person’s role in chambers or in the BSB authorised body;
2. a copy of the chambers’ complaints procedure of the BSB authorised body’s complaint’s procedure
3. the date by which the complainant will next hear from Chambers or the BSB authorised body

Question 30

What must chambers or BSB authorised body’s do once they have dealt with a complaint?

Answer 30

they must be told in writing of their right to complain to the Legal Ombudsman, of the time limit for doing so, and how to contact them

Question 31

Who do the rules on public access apply to?

Answer 31

these rules apply to barristers instructed by or on behalf of a client who has not also instructed a solicitor or other professional client.

Question 32

What must a barrister do before accepting any public access instructions?

Answer 32

1. be properly qualified with a full practising certificate and having properly completed public access training and being registered with the Bar Council as a public access practitioner
2. if a barrister was registered to undertake public access work on 4 October 2013, then he must undertake any additional training required by the BSB within 24 months of that date
3. take such steps as are reasonable to ascertain whether it would be in the best interests of that client to instruct a solicitor or other professional client
4. take such steps as are reasonable to ensure that the client has made an informed decision as to whether to apply for legal aid or whether to continue with public access

Question 33

What must a barrister with less than 3 years standing who has completed public access training do?

Answer 33

1. have a barrister who is a qualified person and has registered with the Bar Council as a public access practitioner readily available to provide guidance.
2. maintain a log of public access cases they have dealt with, including any problems which have arisen
3. seek appropriate feedback from their public access clients on the service provided
4. make this log available on request to the BSB for review

Question 34

When may a barrister not accept direct instructions on behalf of a public access client?

Answer 34

in connection with any matter of proceedings in which, in all the circumstances, not would be in the best interests of the public access client or in the interests of justice for the public access client to instruct a solicitor or other professional client.

Question 35

What should a barrister do if they deem that a public access client should instruct a solicitor or professional client?

Answer 35

1. inform the public access client of his view; and
2. withdraw from the case in accordance with the provisions of rules c25 and c26 and associated guidance unless the client instructs a solicitor or other professional client to act in the case.

Question 36

What must a barrister notify his public access client terms of?

Answer 36

1. the work which the barrister has agreed to perform
2. the fact that in performing his work the barrister will be subject to the BSB Handbook
3. unless authorised to conduct litigation by the BSB, the fact that the barrister cannot be expected to perform the functions of a solicitor or other authorised litigator
4. the fact that the barrister is self-employed, is not a member of a firm and does not take on any arranging role
5. the fact that the barrister may be prevented from completing the work due to his professional duties or conflicting professional obligations and what the client can expect of the barrister in that situation
6. the fees which the barrister proposes to charge for that work, or the basis on which the fee will be calculated.
7. the barrister’s contact arrangements; and
8. the information about the barrister’s complaints procedure required by the rules.

Question 37

Will a barrister have complied with the rule on public access clients if they use the model letter provided on the BSB website?

Answer 37

Yes

Question 38

What must a barrister do with regards to notice when instructed by an intermediary for a direct access case?

Answer 38

they must provide notice to both the public access client and to the intermediary

Question 39

What must be included in the case record kept by a barrister who accepts public access instructions?

Answer 39

1. the date of receipt of the instructions, the name of the lay client, the name of the case and any requirements of the client as to time limits
2. the date on which the instructions were accepted
3. the dates of subsequent instructions, of the despatch of advices and other written work, of conferences, and of telephone conversations
4. when agreed, the fee

Question 40

When a barrister has completed public access instructions, what must be retained and for how long?

Answer 40

1. copies of all instructions
2. copies of all advices given and documents drafted or approved
3. the originals, copies or a list of all documents enclosed with any instructions
4. notes of all conferences and of all advice given on the telephone.

these things must be retained for at least 7 years after the date of the last item of work done.

Question 41

What correspondence is a barrister who has accepted public access instructions entitled to?

Answer 41

1. to copy all documents received from his lay client and retain such copies permanently
2. a barrister shall return all documents received from his lay client on demand, whether or not the barrister has been paid for any work done for the lay client
3. a barrister shall not be required to deliver to his lay client any document drafted by the barrister in advance of receiving payment from the lay client for all the work done by that client
4. a barrister who has accepted public access instructions in any civil matter may take a proof of evidence from his client in that matter.

Question 42

what are the rules on licensed access?

Answer 42

a barrister in self-employed practice may accept instructions from a licensed access client in circumstances authorised in relation to that client by the LAAR whether that client is acting for himself or another.

Question 43

When is a barrister allowed to accept instructions from a licensed access client?

Answer 43

if at the time of giving instructions the licensed access:

1. is identified; and
2. sends the barrister a copy of the licence issued by the BSB

Question 44

A barrister must not accept instructions from a licensed access client unless…

Answer 44

1. the barrister and his chambers are able to provide the services required of them by that licensed access client
2. if the barrister considers it in the interests of the lay client or the interests of justice that a solicitor or other authorised litigator or some other appropriate intermediary be instructed either together with or in the place of the barrister

Question 45

What must a barrister do if they accept instructions from a licensed access client otherwise than on the terms of the licensed access terms of work?

Answer 45

1. must first agree in writing the terms upon which he has agreed to do the work and the basis upon which he is to be paid
2. must keep a copy of the agreement in writing with the licensed access client setting out the terms upon which he has agreed to do the work and the basis upon which he is to be paid

Question 46

What must you do if you are an unregistered barrister supplying legal services to any inexperienced client?

Answer 46

explain that

1. you are not acting as a barrister
2. that you are not subject to those parts of the Code of Conduct and other provisions of this handbook which apply only to BSB authorised persons
3. the BSB will only consider complaints about you which concern the CD or those parts of the handbook that apply to you
4. you are not covered by professional indemnity insurance
5. they have the right to make a complaint, how they complain, to whom and any time limits that apply but that they have no right to complain to the Legal Ombudsman about the services you supply

Question 47

What must unregistered barristers get from their clients?

Answer 47

written confirmation that they have given the explanation of what they can do etc

Question 48

Who are able to complain to the Legal Ombudsman?

Answer 48

1. an individual
2. a business or enterprise
3. a charity with annual income net of tax of less than £1M at the time at which the complainant refers the complaint to you
4. a club, association or organisation, the affairs of which are managed by its members or a committee of its members, with an annual income of net of tax of less than £1M at the time at which the complainant refers to the complaint to you
5. a trustee of a trust with an asset value of less than £1M at the time at which the complainant refers the complaint to you
6. a personal representative or beneficiary of the estate of a person who, before he or she died, had not referred the complaint to the legal ombudsman.

Question 49

Where you carry on reserved legal activities what will any other legal services be subject to?

Answer 49

They will be subject to BSB regulation

Question 50

In what circumstances may you be involved with the supply of legal services?

Answer 50

only after:

1. having obtained an amended practising certificate from the BSB which recognises the capacities in respect of which you are intending to practice.
2. having agreed with each employer or authorised body with which you are involved a protocol that enables you to avoid or resolve any conflict of interests or duties arising from your practice and/or involvement in those capacities.

Question 51

If you are a pupil who has completed/been exempted from the non-practising six months of pupil when may you supply legal services?

Answer 51

if you have the permission for our pupil supervisor or head of chambers

Question 52

If you are a barrister of less than three years standing when may you supply legal services?

Answer 52

by virtue of BSB authorisation

Question 53

If you are a barrister of less than 3 years standing, when only can you conduct litigation by virtue of authorisation of the BSB?

Answer 53

If your principal place of practice is either:

1. a chambers or an annex of chambers which is also the principle place of practice of a relevant qualified person who is readily available to provide guidance to you; or
2. an office of an organisation of which an employee, partner, manager or director is a relevant qualified person who is readily available to provide guidance to you

Question 54

What does a qualified person mean when supplying legal services?

Answer 54

where you are a barrister intended to supply legal services to the public, a person shall be qualified if he:

1. has been entitled to practice and has practised as a barrister or as a person authorised by an approved regulator for a period for at least six years in the previous eight years; and
2. for the previous two Yeats has made such practice his primary occupation; and
3. is not acting as a qualified person in relation to more than two other people; and
4. has not been designated by the BSB as unsuitable to be a qualified person.

Question 55

What does a qualified person mean when exercising a right of audience?

Answer 55

Where you are a barrister exercising a right of audience in England and Wales, a person is a qualified person if he:

1. has been entitled to practise and has practised as a barrister or as a person authorised by another Approved Regulator for a period of at least 6 years in the previous 8 years; and
2. for the previous two years has made such practice his primary occupation and has been entitled to exercise a right of audience before every court in relation to all proceedings; and
3. is not acting as a qualified person in relation to more than two other people; and
4. has not been designated by the BSB as unsuitable to be a qualified person