This is a user-friendly set of notes that takes the Core Duties/Conduct Rules/Guidance from the BSB Handbook and presents it thematically in a way that will help answer SAQ/MCQs because of the way different colours link the different relevant considerations. These give a common-sense pathway to nav...
General
In all scenarios…
• You should remain calm and polite
• You should inform your instructing solicitors
• You should seek an endorsement
• If client will not sign an endorsement/declaration then you should make a contemporaneous note
• Give a practical solution where possible
• Use certain specific phrases as used in the Handbook
• If referencing a Guidance Note then be explicit to get credit
Core Duties
1. You must observe your duty to the court in the administration of justice*
2. You must act in the best interests of each client**
3. You must act with honesty, and with integrity
4. You must maintain your independence
5. You must not behave in a way which is likely to diminish the trust and confidence which the public
places in your or in the profession
6. You must keep the affairs of each client confidential
7. You must provide a competent standard of work and service to each client
8. You must not discriminate unlawfully against any person
9. You must be open and cooperative with your regulators
10. You must take reasonable steps to manage your practice, or carry out your role within your
practice, competently and in such a way as to achieve compliance with your legal and regulatory
obligations
*CD1 overrides any other CD where there is inconsistency between them.
**CD2 is subject not only to obligations under CD1 but also under CD3, CD4 and CD8.
,Accepting Instructions
Core Duties
CD2: You must act in the best interests of each client
CD3: You must act with honesty, and with integrity
CD4: You must maintain your independence
CD5: You must not behave in a way which is likely to diminish the trust and confidence which the
public places in your or in the profession
CD7: You must provide a competent standard of work and service to each client
Cab rank rule of LC — cab rank rule requires you to In determining whether the proposed
accept them. To do otherwise would fee is appropriate, you should have
You must accept any brief to appear let your personal views affect your regard to:
before Court in which you profess to independence (cf. CD4), and would • complexity, length and difficulty of
practise and do so irrespective of the undermine public trust in the case;
party on whose behalf you are profession, (cf. CD5). • expenses you will incur; and
instructed/the nature of the case — • your ability, experience and
even if you have strongly held You must not discriminate and must
accept instructions irrespective of the seniority.
personal beliefs contrary to offence
charged against LC. identity of LC, nature of case to LC does not understand
which instructions relate, whether LC
Does not apply to PA work but you is paying privately/publicly, and any your role
are still not permitted to discriminate belief/opinion formed about You should explain to LC what is
in how you accept/reject instructions. character, reputation, cause, going to happen and court procedure
You could be witness conduct, guilty, or innocence of LC. — check they understand. Simply:
You must not withhold your services/ PC has prepared papers/evidence
against LC bundle and you will be making
permit them to be withheld because:
You may decline instructions if you (i) nature of case is objectionable to arguments on LC’s behalf in Court.
may not be able to maintain your you/any section of public; or (ii) • Explain to LC you are experienced
independence, for instance, conduct, opinions or beliefs of in this area and you have received
appearing as advocate in matter in prospective LC are unacceptable to the papers in advance so are fully
which you are likely to be called as you/any section of public. aware of facts of the case.
witness (unless matter on which you Responding in this way will achieve
are likely to be called is peripheral/ If you are competent (experienced
barrister specialising the needed compliance with CD2, CD3, and
minor in context of litigation as whole CD7.
and is unlikely to lead to your area) and have relevant time to deal
with matter, and there is no conflict of • You provide competent standard of
involvement in matter being work/service to LC (CD7) —
challenged at a later date). interest, and you would be able to
maintain independence (CD4) then including treating LC with courtesy
• If you are planning to withdraw and consideration and seeking to
from case because it appears that you are required to accept
instructions. advise in terms they understand.
you are likely to be a witness on a LC may be unfamiliar with legal
material question of fact, you If LC is legally aided proceedings and may find them
should only do so if it would not difficult/stressful — do what you
This would not change the above —
jeopardise LC’s interests. reasonably can to ensure that they
how LC is funded is irrelevant.
Conflicting personal views • However, it may make a difference understand process/what to expect
and you could refuse if you and should try to avoid
You would not be entitled to refuse unnecessary distress (particularly if
considered that legal aid fee for 3
instructions on the basis of your vulnerable).
weeks was not a proper fee.
personal views conflicting with those
, Confidentiality
Core Duties
CD1: You must observe your duty to the court in the administration of justice
CD2: You must act in the best interests of each client
CD6: You must keep the affairs of each client confidential
Relationship with CDs • If error is discovered (likely as you information where LC gives
cannot make comments re: good informed consent.
Your duty to act in best interests of character) sentence could be
LC (CD2) is subject to duty to Court However, you must not mislead
revisited and if conviction is Court, e.g., by suggesting you have
(CD1) but your duty to Court does disclosed then LC is likely to get
not require you to disclose the affairs no idea why LC failed to attend. Your
credit from Court and it is matter duty to act with honesty and with
of LC if confidential (save obligations which in itself could be used in
under criminal law, i.e., LC makes integrity (CD3) includes requirements
mitigation. that you must not knowingly/
perceived genuine threat to kill
witness). If LC insists you do anything that recklessly mislead or attempt to
would mislead Court (contrary to mislead anyone.
Confidential post-trial? duty not to inadvertently/knowingly
mislead) you must withdraw, How to protect
Whether or not your relationship with
LC is continuing, you must preserve explaining to LC why you are doing confidentiality
confidentiality of his affairs (extends so. Your duty to maintain confidentiality
generally to LC’s “affairs,” “papers in If there is risk that Court will be of LC’s affairs means all devices
any instructions,” and information misled unless you disclose should be used to store information
from LC which has been “entrusted confidential information you should needed for immediate business
to him in confidence”) unless you ask for permission to disclose it. If LC purposes only and include password
have express consent from LC. refuses to allow you to make protection/encryption (additional
disclosure you must cease to act, safeguards for sensitive information).
Wrong antecedents and return instructions promptly. In Care should be taken in looking after
You should not reveal pre-cons these circumstances you must not devices to ensure they are not lost/
without consent from LC — inform reveal the information to Court. stolen — losing devices containing
LC that information he provides is unprotected confidential material
confidential unless he chooses to
Because LC lied could breach duty of confidentiality.
waive privilege. If consent is refused To continue to allow Court to believe • Barristers are data controllers
then course of action is determined that LC is AB not CD would amount under Data Protection Act 2018
by question — would failure to draw to misleading Court and is prohibited. and GDPR and must comply with
convictions to Court’s attention result LC must either reveal deception or rules on data handling.
in failure to pass a sentence required you must withdraw. • You may also need to take steps to
by law? ensure proper arrangements are
• N: you can represent LC but you
LC absconds after telling made in chambers for management
must not mislead Court by you of conflicts of interest and for
adopting the position outlined by You should not inform Court of your ensuring confidentiality of clients’
Prosecution/by advancing false conversation with LC; you have a affairs.
contentions. duty of confidentiality (CD6) and your
• Y: you cannot act and must Consequences for failure
duty to Court does not require you to
withdraw, explaining to LC why you act in breach of this (unless LC has Any barrister who allows other
are doing so. authorised disclosure). people to see confidential material/
If able to continue to act you should • LCs who put confidence in legal loses portable devices on which
advise LC: advisers must be able to do so in unprotected information is stored/
• You are under limitations (e.g., no knowledge that information they does not dispose of LC's papers
mitigation re: time since last give will stay confidential. securely could face disciplinary
conviction) and that if you are • Unless required by law (e.g., under action by BSB. A breach is likely be
asked a direct question you cannot Proceeds of Crime Act 2002) you contrary to CD10 and demonstrate
give an untruthful answer. may only disclose confidential poor practice management.
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