Professional Ethics Formative Mark Scheme 090921

Barrister Training
Course
Professional Ethics
Formative Assessment
Mark Scheme
Question 1
You are in-house Counsel at a criminal defence firm. All of your work comes from the
firm’s long-standing regular clients. You have a strong reputation within your firm and
in the local legal community. You have once again secured an acquittal for one of your
regular clients, Petar Polanski, who was on trial for assault. Petar is the wealthy owner
of a housing development company and is very grateful to you for your assistance. The
following morning you arrive to the office to find a small bunch of flowers, a bottle of
prosecco and an envelope containing an invitation to dinner at the 3 Michelin starred
restaurant “Le Trois” in Oxfordshire. The invitation says that a limosine will come to
pick you up at 8:00pm that evening and he looks forward to seeing you later to share
some very nice wine with you to thank you for your efforts.
You feel overwhelmed at the generosity of the gift, but given that he is a wealthy and
long-standing client, you feel obliged to accept the offer. What should you do?
[A] You should accept the prosecco and flowers but politely decline the invitation to dinner.
[B] Go along to the dinner because if you don’t, you may offend Petar and the firm will lose
his business.
[C] Considering the nature of the relationship, and that he is a wealthy, private paying
client, there is nothing prohibiting you from accepting the gifts and attending the dinner.
[D] You should decline the prosecco, flowers and the invitation to dinner.
Correct Answer Feedback
You should accept the prosecco and flowers This is correct. In making an assessment of the
but politely decline the invitation to dinner. value of the gifts, you would need to determine
whether or not others may feel your
independence has been compromised. Taking
into account the value of the flowers and the
prosecco, you can therefore accept the
prosecco and flowers, and decline the dinner,
which would likely maintain your longstanding
relationship with the client. rC8; gC19
Incorrect Answer Feedback
Go along to the dinner because if you don’t, This is incorrect. The dinner may lead others to
you may offend Petar and the firm will lose think your independence has been
his business. compromised. See gC19
Considering the nature of the relationship, This is incorrect. Whilst your client can afford the
and that he is a wealthy, private paying client, dinner, the value of the meal may lead others to
there is nothing prohibiting you from feel that your independence is compromised.
accepting the gifts and attending the dinner. See gC19

You should decline the prosecco, flowers and Whilst this is correct, it doesn’t reflect that you
the invitation to dinner. are entitled to accept gifts if your independence
would not be compromised. See gC19
Question 2
You are a prominent barrister who specialises in immigration and asylum. A television
channel is producing a documentary on the legal challenges faced by asylum seekers
in the U.K. You often post on social media and you are approached by the channel for
your assistance with the documentary. Coincidentally you are dealing with an
interesting case that is presently in the High Court and feel that it would be a good case
to showcase the issues that the programme is dealing with.
Which one of the following factors best reflect your ethical obligations in terms of
participating in the documentary?
[A] There are no particular factors to consider because there is no longer a prohibition on
barristers on expressing a personal opinion on the cases in the media.
[B] You can participate but only if your professional indemnity liability insurance covers
potential claims for defamation or malicious falsehood.
[C] You should give careful consideration as to whether commenting on the individual case
in which you have been instructed. You must consider your duty of confidentiality,
whether making comment on your client’s case would be in their best interests and
whether taking part would compromise your independence or the trust and confidence
the public hold in the profession.
[D] If you have sufficient time, then you can take part in the documentary.
You should give careful consideration as to Correct. This question raises the barrister’s
whether commenting on the individual case in compliance with:
which you have been instructed. You must
consider your duty of confidentiality, whether CD 2 (must act in the best interests of each
making comment on your client’s case would client).
be in their best interests and whether taking CD 3 (must act with honesty, and with integrity).
part would compromise your independence CD 4 (must maintain your independence).
or the trust and confidence the public hold in CD 5 (must not behave in a way which is likely
the profession. to diminish the trust and confidence which the
public places in you or in the profession).
CD 6 (must keep the affairs of each client
confidential) gC22
There are no particular factors to consider Incorrect. gC22 states the former prohibition on
because there is no longer a prohibition on practising barristers expressing a personal
barristers on expressing a personal opinion opinion in the media in relation to any future or
on the cases in the media. current proceedings in which they are briefed
has been removed. Practising barristers must,
nevertheless, ensure that any comment they
make does not undermine, and is not
reasonably seen as undermining their
independence. Furthermore any such comment
must not bring the profession, nor any other
barrister into disrepute.
You can participate but only if your Incorrect. The BSB guidance requires barristers
professional indemnity liability insurance to ensure that any comment they make does not
covers potential claims for defamation or undermine, and is not reasonably seen as
malicious falsehood. undermining their independence. Furthermore
any such comment must not bring the
profession, nor any other barrister into disrepute.
The question of whether professional indemnity
liability insurance covers potential claims for
defamation or malicious falsehood in these
circumstances is not a relevant factor for
consideration. Barristers should be aware that
their insurance does not cover liability for such
claims. The Media Comment Guidance (para
6).
If you have sufficient time, then you can take Incorrect. Whilst time is an important factor, this
part in the documentary. is not the primary consideration when
considering your obligations when speaking to
the media.
Question 3
You are an experienced barrister specialising in tax law. You are involved in a High
Court trial between your client, an online retailer, and HM Revenue & Customs. You are
about to make closing submissions when your professional client hands you a copy of
a decision of the Court of Appeal which you consider completely undermines your case
and the arguments you are about to make. The consequences for your client of losing
this case will be enormous and will almost certainly amount to many millions of pounds
in increased tax.
Which of the following best describes the approach you should take?
[A] You should not draw the case to the attention of the court unless you are specifically
questioned about it. Your duty is to act in the best interests of your client at all times.
[B] You should draw the case to the attention of the court in circumstances where the
opposite party is not legally represented. In this case the opposing side is represented
by experienced Queen’s Counsel and therefore no such duty arises.
[C] You should not draw the case to the attention of the court unless your client consents
to waiving confidentiality.
[D] You are duty bound to draw the case to the attention of the court because it is a
relevant decision. The fact that the decision is adverse to your own case makes no
difference to this duty. You should advise your client accordingly.
You are duty bound to draw the case to the Correct. The following rules and guidance
attention of the court because it is a relevant contain the correct answer: rC3: “You owe a
decision. The fact that the decision is duty to the court to act with independence in the
adverse to your own case makes no interests of justice. This duty overrides any
difference to this duty. You should advise inconsistent obligations which you may have
your client accordingly. (other than obligations under the criminal law). It
includes the following specific obligations ... .4
you must take reasonable steps to ensure that
the court has before it all relevant decisions and
legislative provisions.” gC5: “Your duty under
Rule C3.3 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.”
You should not draw the case to the attention Incorrect. The answer is incorrect as although
of the court unless you are specifically you have a duty to your client, this duty is
questioned about it. Your duty is to act in the overridden by your duty to the court to ensure
best interests of your client at all times. that it is informed of all relevant decisions and
legislative provisions. You should raise adverse
authority with the court whether or not you are
questioned about it by the judge.
You should draw the case to the attention of Incorrect. Your obligation to draw the attention
the court in circumstances where the of the court to adverse authority applies whether
opposite party is not legally represented. In or not your opponent is a litigant in person or
this case the opposing side is represented by legally represented. See rule rC3.
experienced Queen’s Counsel and therefore
no such duty arises.
You should not draw the case to the attention Incorrect. The adverse authority is not
of the court unless your client consents to confidential information arising out of your
waiving confidentiality. representation of your client and therefore no
duty to maintain confidentiality arises.
Question 4
You are representing a Claimant in an immigration appeal. At lunch on the first day of
proceedings your client asks to speak to you along with your instructing solicitor. Your
client appears very agitated and irrate. When you speak with him, he says to you that,
“The way you have conducted matters this morning has been shameful, your mastery
of the brief was poor, your knowledge of the case seems limited and you seem to have
no conviction in what you’re saying”. Finally he states that he “could do better without
you.” You are extremely surprised by this outburst as you had spent a significant time
on preparing his case and in your professional judgement, the case was going as well
as it could be.
Which one of the following courses of action best describes how you should react?
[A] You must raise the matter with the court and seek guidance from the judge.
[B] You may cease to act and return your instructions because your professional conduct
is being called into question, but you should do your best in the circumstances to
ensure that your client is not adversely affected.
[C] You must cease to act and return your instructions because there is a conflict of
interest between your own personal interests and the interests of the client.
[D] You cannot cease to act in these circumstances unless your solicitor also withdraws
from the case.
Correct Answer Feedback - Correct
You may cease to act and return your Correct. rC26 provides that ‘You may cease to
instructions because your professional act on a matter on which you are instructed and
conduct is being called into question, but you return your instructions if: .1 your professional
should do your best in the circumstances to conduct is being called into question.’ In
ensure that your client is not adversely addition gC83 provides: ‘In deciding whether to
affected. cease to act and to return existing instructions in
accordance with Rule C26, 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.’
You must cease to act and return your Incorrect. This is not one of the circumstances in
instructions because there is a conflict of which you MUST cease to act as set out in
interest between your own personal interests rC25. There is no conflict between your personal
and the interests of the client. interest and the interest of the lay client which
may not be able to be resolved.
You cannot cease to act in these Incorrect. Whether or not your professional client
circumstances unless your solicitor also withdraws is immaterial to your decision to
withdraws from the case. cease to act. You may do so where your
professional conduct is being called into
question. rC26
You must raise the matter with the court and Incorrect. The discussion between you and your
seek guidance from the judge. client would be subject to legal professional
privilege and therefore to raise the matter with
the court would be in breach of your core duty to
keep the affairs of your client confidential. (CD
6)
Question 5
You are an experienced criminal practitioner defending a man charged with possession
of an offensive weapon namely a machete. The Crown allege that he was arrested after
a routine search when the machete was found in a bag he was alleged to be carrying.
After a forensic examination of the bag containing the machete, his fingerprints and
DNA were found on both the bag and the knife. The Defendant has told you in
conference that he had nothing to do with the machete and that in fact the police
planted the machete in his bag and then forced him to touch the bag and the machete
so they would find his fingerprints and DNA. You are particularly concerned that the
Defendant has 7 previous convictions for possession of an offensive weapon. He tells
you that all his previous convictions were wrongful convictions.
Which one of the following best describes the approach to adopt in representing the
Defendant?
[A] You cannot represent the Defendant because his defence is not credible and you are
under a duty to act with honesty and integrity.
[B] You can represent the Defendant but only if he pleads guilty to the offence charged.
You must represent him even though you do not personally believe a word he has told
you in his defence.
[C] You are entitled to represent the Defendant but only by putting the crown to proof and
not advancing a positive defence. You are not permitted to put forward a defence which
you do not personally believe to be true.
[D] You must represent the Defendant even though you do not personally believe a word
he has told you in his defence.
Correct Answer Feedback – Correct
You must represent the Defendant even Correct. gC6: “You are obliged by CD2 to
though you do not personally believe a word promote and to protect your client’s interests so
he has told you in his defence. 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.”
You cannot represent the Defendant because Incorrect. Your belief/opinion regarding the guilty
his defence is not credible and you are under or innocence of your client is not a basis to
a duty to act with honesty and integrity. refuse to accept instructions. (rC29.3d ).
You can represent the Defendant but only if Incorrect. You must represent the Defendant
he pleads guilty to the offence charged. You whether or not you believe his instructions. It is
must represent him even though you do not incorrect to suggest you can only continue to
personally believe a word he has told you in represent the Defendant if he pleads guilty to
his defence. the offence, as your instructions amount to a
legitimate defence in law; the Defendant should
therefore plead not guilty.
You are entitled to represent the Defendant Incorrect. Your client has given you an account
but only by putting the crown to proof and not which amounts to a defence in law. Therefore,
advancing a positive defence. You are not you must follow his instructions (regardless of
permitted to put forward a defence which you your personal opinion or belief as to their
do not personally believe to be true. veracity). You are not restricted to putting the
crown to proof. This restriction only applies if the
Defendant has told you they are guilty of the
offence but wish to maintain a not guilty plea
and proceed to trial.
Question 6
You are a barrister in criminal practice and you have been sent some papers to
represent two sisters, Kylie and Susan, who have been accused of shoplifting from a
clothes shop. The prosecution case is that Susan went into the fitting room and dressed
herself in clothes from the shop under her own clothes, whilst Kylie kept watch. Both
wish to plead not guilty. Kylie denies any involvement, but Susan says the whole thing
was Kylie’s idea.
Which of the follow is a correct statement of the ethical position on these facts?
[A] You can accept instructions to act for Kylie but must refuse instructions to act for
Susan.
[B] You can act for both Susan and Kylie so long as each of them gives their informed
consent to your acting in the circumstances.
[C] You must not accept instructions from both Susan and Kylie, because there is a
conflict of interest between them.
[D] You must not accept instructions from Susan and Kylie because they are members of
the same family and as a result an inherent conflict of interest arises.
You must not accept instructions from both Correct. There is a conflict of interest between
Susan and Kylie, because there is a conflict the clients and you would not be able to conduct
of interest between them. the case for one client without breaching the
confidence of the other. Please see rC21.3.
Even if the clients each consented to you
continuing to act (which is unlikely in the
circumstances) you could not act in the best
interests of each client as required by CD2.
You can accept instructions to act for Kylie Incorrect. See rC21.4. Due to the conflict of
but must refuse instructions to act for Susan. interest, there is a real risk that information
confidential to Susan would be relevant to the
matter, so that you could not act in Kylie’s best
interests under CD 2.
You can act for both Susan and Kylie so long Incorrect. Please see rC21.3. You have a duty to
as each of them gives their informed consent act in the best interests of each client (CD 2).
to your acting in the circumstances. This is impossible here if you are acting for both
of them, due to the conflict of interest. Even if
the clients consented to you continuing (which is
unlikely in the circumstances) you could not act
in the best interests of each client as required by
CD2.

You must not accept instructions from Susan Incorrect. There is nothing inherent that prevents
and Kylie because they are members of the a barrister acting for two members of the same
same family and as a result an inherent family. The universal ethical rules apply. Please
conflict of interest arises. see rC21.3. You have a duty to act in the best
interests of each client (CD 2). It is impossible
for you to do this if you act for both Susan and
Kylie here, due to the conflict of interest arising
from their inconsistent versions of events.
Question 7
You are a self-employed barrister specialising in criminal law in particular, complex

fraud. You are instructed as junior counsel in a corporation tax fraud being led by
Queen’s Counsel. The Defendant you represent seeks to rely on evidence from his
company’s accountant. The accountant will give evidence of the financial success of
the business and the Defendant’s reliance on advisors. The Prosecution case is that
the Defendant does not rely on advisors and is proficient in matters of tax and accounts.
Your instructing solicitor is about to go on holiday and will not return until a few days
before the start of the trial. She has asked you to take the witness statement from the
accountant.
What is the best advice you can give your instructing solicitor about this?
[A] You should refuse to accept the instructions to take the witness statement as there
are rules in place which prohibit self-employed barristers from taking statements from
potential witnesses.
[B] You can accept the instructions to take the witness statement as your solicitor cannot
do so and otherwise the witness statement would not be prepared for trial.
[C] You should refuse to accept the instructions to take the witness statement as there is
a real prospect that you will not be able to maintain your independence.
[D] You can accept the instructions to take the witness statement, reassuring your
solicitor that having done so you will not return the case.
You should refuse to accept the instructions Correct. This is the best advice to give here.
to take the witness statement as there is a You must not accept instructions to act in a
real prospect that you will not be able to matter if there is a real prospect that you are not
maintain your independence. going to be able to maintain your independence.
An example of this would be where you are
likely to be called as a witness in a case when
you are appearing as the advocate. This could
include where it is likely that the evidence of the
witness is to be challenged as is likely here.
The best advice is not to accept the instructions
to take the witness statement (RC21.10 & Gc73
BSB Handbook & Para 3 Investigating and
Collecting Evidence and Taking Witness
Statements Guidance)
You should refuse to accept the instructions Incorrect. This would not be the best advice. In
to take the witness statement as there are fact there is no rule in place which prohibits self
rules in place which prohibit self-employed employed barristers from investigating or
barristers from taking statements from collecting evidence generally or therefore taking
potential witnesses. witness statements from potential witnesses. In
this context taking witness statements means
interviewing the potential witness with a view to
preparing a statement or proof of evidence
(Paragraphs 1 & 3 Investigating and Collecting
Evidence and Taking Witness Statements
Guidance).
You can accept the instructions to take the Incorrect. This is not the best advice to give. The
witness statement as your solicitor cannot do availability of your instructing solicitor to take the
so and otherwise the witness statement statement is not the most important
would not be prepared for trial. consideration here. You must not accept
instructions to act in a matter if there is a real
prospect that you are not going to be able to
maintain your independence. An example of
this could be where you are likely to be called as
a witness in a case when you are appearing as
the advocate. This could include where it is
likely that the evidence of the witness is to be
challenged as is likely here. The best advice is
not to accept the instructions to take the witness
statement (RC21.10 & Gc73 BSB Handbook &
Para 3 Investigating and Collecting Evidence
and Taking Witness Statements Guidance)
You can accept the instructions to take the Incorrect. This is not the best advice. Even if you
witness statement, reassuring your solicitor accepted the instructions to take the witness
that having done so you will not return the statement from the accountant and in fact took
case. the statement, the question of whether you
should continue to act must be kept under
review in the event that there are circumstances
when you might become a witness. (Paragraph
7 Investigating and Collecting Evidence and
Taking Witness Statements Guidance).
Question 8
Having recently completed your pupillage, you notice that your clerk has entered two
hearings on new matters into your diary for the following Monday: an application to
suspend a warrant for possession (listed for 10 minutes in the Manchester Civil Justice
Centre at 10:30) and an application to set aside default judgment (listed for 30 minutes
in the Leeds Combined Court Centre at 2pm). Having attended a possession hearing in
Manchester last week, you are aware that your first hearing is likely to be ‘block listed’
with approximately 20 other similar cases and that you could be waiting some time for
your case to be called on. You speak to your clerk as you are concerned you may not
get to Leeds in time for the 2pm hearing. She tells you there is nothing to worry about
and that there will be plenty of time to get there. She adds, “if it makes you feel any
better, I know the court usher in Manchester well and I will ask him to get you on early.”
You remain concerned but do not want to appear difficult in front of your clerk.
Which of the following best represents what you should do?
[A] You should accept your clerk’s offer to speak with the usher so that you can be sure
that you are not late for the hearing in Leeds.
[B] You should tell your clerk that you will remain in contact throughout the day and, if you
are running late in Manchester, ask that she telephone the court in Leeds to explain
that you have been delayed.
[C] You should accept your clerk’s offer to speak with the usher so that you can be sure
that you are not late for the hearing in Leeds.
[D] You should tell your clerk that you cannot attend both hearings and she should
reallocate one of them to someone else.
You should tell your clerk that you cannot Correct. You are personally responsible for your
attend both hearings and she should own conduct and work and must exercise your
reallocate one of them to someone else. own professional judgment and be able to justify
your decisions and actions, notwithstanding the
views of others (rC20). By accepting both cases,
there is a very real risk that you will not get to
the second hearing in time, thereby breaching
your duty to take reasonable steps to avoid
wasting the court’s time (CD1). Being late would
also potentially breach your duties to your client
to act in their best interests (CD2) and provide a
competent standard of work and service (CD7).
You should not allow your concerns over how
you will be perceived by your clerk to influence
your judgment on what to do (CD4). It will be for
the court to decide the order in which cases are
called on and therefore it is inappropriate to rely
on the assurances she gives you.
You should accept your clerk’s offer to speak Incorrect. Ensure you are familiar with rC20 and
with the usher so that you can be sure that think about your duty to take reasonable steps
you are not late for the hearing in Leeds. to avoid wasting the court’s time (CD1) and your
duties to the client under CDs 2 and 7. It will be
for the court to decide the order in which cases
are called on within the block list. It is
inappropriate to rely on the assurances given to
you by your clerk as there is a very real risk that
you will be late for the hearing in Leeds at 2pm.
You cannot allow your own personal concerns
about how your clerk will perceive you to
influence your judgment on what to do (CD4).
Given what you know about the possibility of
delay in Manchester, it is probably better not to
accept both cases.
You should tell your clerk that you will remain Incorrect. Ensure you are familiar with rC20 and
in contact throughout the day and, if you are think about your duty to take reasonable steps
running late in Manchester, ask that she to avoid wasting the court’s time (CD1) and your
telephone the court in Leeds to explain that duties to the client under CDs 2 and 7. It will be
you have been delayed. for the court to decide the order in which cases
are called on within the block list. Whilst it would
always be appropriate to inform the court if you
are unavoidably delayed, you are already aware
of the risk that you will be late and can avoid it.
You cannot allow your own personal concerns
about how your clerk will perceive you to
influence your judgment on what to do (CD4).
Given what you know about the possibility of
delay in Manchester, it is probably better not to
accept both cases.
You should ask your clerk whether anyone Incorrect. Ensure you are familiar with rC20 and
else is available to do one of the hearings but think about your duty to take reasonable steps
explain that, if not, you will take them both to avoid wasting the court’s time (CD1) and your
and will speak to the usher in Manchester duties to the client under CDs 2 and 7. It will be
when you get there to inform him of your for the court to decide the order in which cases
position. are called on within the block list and therefore
there is a very real risk that you will have to wait
to be called on. You cannot allow your own
personal concerns about how your clerk will
perceive you to influence your judgment on what
to do (CD4). Given what you know about the
possibility of delay in Manchester and
considering both cases are new to you, it is
probably better not to accept both cases and to
insist one of them is reallocated.
Question 9
You have been a member of chambers for six months following the end of your
pupillage, during which you did work predominantly in family law and the occasional
criminal hearing. You receive a telephone call from your clerk informing you that urgent
instructions have arrived in chambers in relation to a company law matter due to be
heard in the applications list in the High Court the following morning. Your clerk
informs you that it is a straightforward matter, will not take long to prepare and that he
has informed the client that you will be perfectly able to handle the case. He adds that
it is important to chambers that this solicitor client is kept happy. You have some time
during which you could prepare the case today, but are concerned that you have no
experience in company law. You look at the papers, but because the area of law is
unfamiliar to you, you cannot immediately tell whether the case is complex or not or
whether what your clerk has told you is accurate.
[A] You should tell your clerk that you do not feel competent to deal with the case and that
you cannot accept the instructions.
[B] You should spend the morning reading the papers thoroughly and then take a view
whether you feel able to deal with the case.
[C] You should accept the instructions and immediately start reading the papers to give
yourself the maximum time to prepare.
[D] You should accept the instructions and then find a more experienced member of
chambers who might be able to give you guidance.
You should tell your clerk that you do not feel Correct. You are under a duty to act in your
competent to deal with the case and that you client’s best interests (CD2). If you accept the
cannot accept the instructions. instructions, you must provide a competent
standard of work and service (CD7). You must
not accept instructions if you are not competent
or do not have enough experience to handle the
matter (rC21.8). Further, you must not accept
instructions if you do not have enough time to
handle the particular matter, unless it would be
in your client’s best interests to accept
instructions (rC21.9). You are personally
responsible for your own conduct and must
exercise your own professional judgment as to
whether you feel competent to accept the
instructions. You have a duty to maintain your
independence (CD4) and the fact that your clerk
is pressuring you to accept the instructions
should not influence your decision. Here, as
you do not even have enough experience to be
able to tell whether you are competent to deal
with the matter, you should not accept the
instructions as more experienced counsel can
probably be instructed if you notify the clerk of
this immediately.
You should spend the morning reading the Incorrect. You must exercise your own
papers thoroughly and then take a view professional judgment as to whether you feel
whether you feel able to deal with the case. you can adhere to your duties to act in the
client’s best interests and provide a competent
standard of work and service. Ensure that you
are familiar with rC21 and when you must not
accept instructions. You should not allow your
independence to be compromised by any
pressure you feel from your clerk. If you delay
making a decision whilst you decide whether to
accept the instructions, it is possible that it will
be too late for the client to instruct more
experienced counsel for the hearing, which is
imminent. It is only when instructions arrive so
late that no suitable, competent advocate would
have adequate time to prepare, that the
instructions should be accepted.
You should accept the instructions and Incorrect. You must exercise your own
immediately start reading the papers to give professional judgment as to whether you feel
yourself the maximum time to prepare. you can adhere to your duties to act in the
client’s best interests and provide a competent
experienced counsel for the hearing which is
You should accept the instructions and then Incorrect. You must exercise your own
find a more experienced member of professional judgment as to whether you feel
chambers who might be able to give you you can adhere to your duties to act in the
guidance. client’s best interests and provide a competent
experienced counsel for the hearing which is
Question 10
You are a barrister who represents the Defendant company in an Employment Tribunal
case concerning an allegation of unfair dismissal. The Claimant is David, a former
employee of the Defendant. The Defendant is represented at the Tribunal by Bob, who
is the Managing Director of the company. During the course of a conference the week
before the Tribunal hearing, Bob shows you an internal memo which says the following
‘will need to let go of David to reduce the payroll’.
How should you advise Bob?
[A] You should advise Bob that the memo should be disclosed to the Tribunal and the
Claimant.
[B] You should advise Bob that the memo need not be disclosed to the Tribunal and the
Claimant.
[C] You should advise Bob that you must withdraw from the case because the memo
should have been disclosed to the tribunal and the Claimant.
[D] You should advise Bob that she must withdraw from the case and must disclose the
memo to the Tribunal and the Claimant.
You should advise Bob that the memo should Correct. This answer correctly states the advice
be disclosed to the Tribunal and the which you should give to Bob. The memo
Claimant. seems to support the Claimant’s case.
Therefore in order to comply with your duty to
the court in the administration of justice, you
should advise that the memo be disclosed.
(BSB Handbook CD1, rC3.1, gC13). Although
the other answers sound plausible, they are
incorrect. Bob should be advised that the memo
should be disclosed because it assists the
Claimant’s case. At this stage you do not need
to withdraw from the case; you should first seek
the permission of Bob to disclose the memo. If
Bob refuses to authorise disclosure, you should
withdraw.
You should advise Bob that the memo need Incorrect. Please review your materials on the
not be disclosed to the Tribunal and the duty to the court in the administration of justice,
Claimant. with particular regard to the appropriate steps
when a document has not been disclosed which
should have been. The memo should be
disclosed because it assists the Claimant’s
case.
You should advise Bob that you must Incorrect. Please review your materials on the
withdraw from the case because the memo duty to the court in the administration of justice,
should have been disclosed to the tribunal with particular regard to the appropriate steps
and the Claimant. when a document has not been disclosed which
should have been. At this stage you do not
need to withdraw from the case; you should first
seek the permission of Bob to disclose the
memo.
You should advise Bob that she must Incorrect. Please review your materials on the
withdraw from the case and must disclose the duty to the court in the administration of justice,
memo to the Tribunal and the Claimant. with particular regard to the appropriate steps
when a document has not been disclosed which
should have been. At this stage you do not
need to withdraw from the case; you should first
seek the permission of Bob to disclose the
memo.
Question 11
You are instructed for the Claimant in a negligence action. Your client was involved in
a road traffic accident, whereby he was struck by a vehicle being driven by an employee
of the Defendant’s company. There is a dispute between the parties over contributory
negligence, as it is said that your client tried to cross the road at a busy junction when
the pedestrian lights clearly displayed the “red man”, indicating to the public that it was
not safe to cross at that time. The Claimant denies this and says the light was green for
him to cross the road. No evidence has been served or exchanged by either side as of
yet. In conference, you ask your client if he has the details of any witness that may
assist his version of events. Your client responds that his best friend was with him at
the time and that he has sent a statement to the solicitor. When you read the friend’s
statement, you realise that it does not mention whether the pedestrian crossing was in
your client’s favour or not. You raise this with the solicitor who, in turn, asks you to re-
draft the statement and include the detail that you want the witness to say in court.
Which of the following best describes what you should you do in this situation?
[A] You should decline to re-draft the statement. You should tell your solicitor to arrange
a conference for you with the witness, so that you can advise him what to say before
a further statement is formally taken from him.
[B] You should decline to re-draft the statement. Your solicitor should speak further with
the witness and obtain the information that has been omitted in a further statement.
[C] You should do nothing. You should proceed to trial with the information already
available and simply hope that the witness says what you want him to say during the
trial.
[D] You should do whatever your solicitor instructs you to do. You should re-draft the
statement for the witness and include all of the information that you want the witness
to say during the trial.
You should decline to re-draft the statement. Correct: At this stage, you do not know what the
Your solicitor should speak further with the witness would say about the colour of the
witness and obtain the information that has pedestrian crossing lights. The witness
been omitted in a further statement. statement should contain the witness’ own
words. The main rules which defines and
regulate counsel’s functions in relation to the
preparation of evidence and contact with
witnesses are Rule C9.2(d), which prohibits
counsel from drafting any witness statement or
affidavit that contains any statement of fact other
than the evidence which one reasonably
believes the witness would give if the witness
were giving evidence orally, and Rule C9.3,
which prohibits counsel from encouraging a
witness to give evidence which is misleading or
untruthful. (It is a contempt of court to try to
persuade a witness to alter his or her evidence –
see Re B(JA) An Infant [1965] Ch. 1112)1 ) One
should also take note of Rule C6.2 and gC6 and
gC7.
You should decline to re-draft the statement. Incorrect. Rule C9.4 which contains a
You should tell your solicitor to arrange a fundamental prohibition, that “you must not
conference for you with the witness, so that rehearse, practise with or coach a witness in
you can advise him what to say before a respect of their evidence”. This is explained as
further statement is formally taken from him. flowing from CD 3 (the duty to act with honesty
and integrity): and see, too, Outcomes C6 and
C7.
You should do nothing. You should proceed Incorrect. This is not the best situation as you do
to trial with the information already available not know what the answer would be and how
and simply hope that the witness says what this evidence could affect your client’s case. You
you want him to say during the trial. should always have a full proof of evidence /
statement from any witness before you proceed
to call them during a trial scenario. You should
advise your solicitor to speak further with the
witness and obtain the information that has been
omitted in a further statement.
You should do whatever your solicitor Incorrect. CD3: You must act with honesty and
instructs you to do. You should re-draft the integrity. CD4: You must maintain your
statement for the witness and include all of independence. Under Rule C9.2(d), counsel is
the information that you want the witness to prohibited from drafting any witness statement
say during the trial. or affidavit that contains any statement of fact
other than the evidence which one reasonably
believes the witness would give if the witness
were giving evidence orally. You do not know
what the truthful answer from this witness would
be yet. Rule C9.3 prohibits counsel from
encouraging a witness to give evidence which is
misleading or untruthful. It is a contempt of court
to try to persuade a witness to alter his or her
evidence – see Re B(JA) An Infant [1965] Ch.
1112).
Question 12
You are an established barrister specialising in asylum and immigration law. You are
asked by your clerk if you can take on a deportation appeal. It is a relatively
straightforward case and the instructions come from a reputable solicitors firm who
send chambers a great deal of work. You have just completed a string of cases, and
have some time your diary to deal with this new case. When you cast your eyes over
the brief, you see that the client is facing deportation after committing a serious hate
crime against a Jewish person in the U.K. You are an orthodox Jew and feel
uncomfortable representing this client.
Which of the following, best represent your ethical obligations in these circumstances?
[A] You should accept the case and be completely transparent by informing the client of
your personal views.
[B] You should refuse to accept the case because you cannot realistically act in the best
interests of the client.
[C] You should withhold your services because the nature of the case is objectionable to
you.
[D] You should not discriminate against the client and accept the case under the cab rank
rule.
You should not discriminate against the client Correct. You are obliged under the Cab Rank
and accept the case under the cab rank rule. Rule to accept the case, rC29. Under rC28 a
barrister cannot withhold their services on the
basis of the beliefs of the cleint being
unacceptable. See also gC88
To do otherwise would be letting their personal

views affect their independence, contrary to
CD4.
You should accept the case and be completely Incorrect. Your personal views are not relevant
transparent by informing the client of your to your ability to act in the best interests of the
personal views. client. There is therefore no need to tell the
client of them. See rC28 and CD4
You should refuse to accept the case because Incorrect. There is nothing here to indicate that
you cannot realistically act in the best interests you cannot act in the best interests of the client.
of the client.
Under CD4 and rC28 the barristers’s views of
the client are irrelvent to whether he can act in
the client’s best interests.
You should withhold your services because Incorrect. Under rC28 this is expressly
the nature of the case is objectionable to you. prohibited.
Question 13
You are in Chambers as a self-employed barrister specialising in criminal law. Recently

Chambers have been approached by a solicitors’ firm who have a large amount of work
from high net worth clients. Your clerks and some QC’s in Chambers are keen for this
work to be fostered. You decide it would be a good idea to arrange a small drinks
reception with some of the partners at the firm, along with some of the QC’s from
Chambers. When you meet them that evening you immediately offer to buy them all a
glass of Champagne or a cocktail. Discussions then move between you and one of the
solicitors to instructing you on a case concerning money laundering allegations. These
discussions go well and the brief sounds very interesting. The solicitor suggests that
as part of your remuneration, she is paid 5% of your hourly preparation rate.
What is the best approach for you to take here?
[A] You should agree to accept the brief as the case will be rewarding and the firm is one
to foster good professional relationships with.
[B] You should agree to accept the brief as having discussed it with your clerks, they
advise those financial arrangements are commonplace.
[C] You should refuse to accept the instructions on the basis that has been suggested to
you by the solicitor, as your clerks advised the solicitor is usually paid 1% of the total
brief fee.
[D] You should refuse to accept the instructions on the basis that has been suggested to
you by the solicitor as you must not pay referral fees.
You should refuse to accept the instructions Correct. This is the best approach to take here
on the basis that has been suggested to you and you should refuse to accept the instructions.
by the solicitor as you must not pay referral You must not pay or receive referral fees (RC10
fees. Handbook) and a breach of RC10 is likely to
breach your duty to refrain from behaving in a
way which is likely to diminish the trust and
confidence the public places in the profession
(CD5). The solicitor is a professional person
acting for the lay client who has a duty to act in
the best interests of the client. (BSB Guidance
on Referral and Marketing Arrangements for
Barristers). The payment is a condition of
receiving a referral (BSB Guidance on Referral
and Marketing Arrangements for Barristers).
This is likely to be a prohibited referral fee and
therefore in breach of the Handbook (BSB
Guidance on Referral and Marketing
Arrangements for Barristers).
You should agree to accept the brief as the Incorrect. This is not the best approach to take
case will be rewarding and the firm is one to here and you should refuse to accept the
foster good professional relationships with. instructions. You must not pay or receive
referral fees (RC10 Handbook) and a breach of
RC10 is likely to breach your duty to refrain from
behaving in a way which is likely to diminish the
trust and confidence the public places in the
profession (CD5). The solicitor is a professional
person acting for the lay client who has a duty to
act in the best interests of the client. (BSB
Arrangements for Barristers). The payment is a
condition of receiving a referral (BSB Guidance
Barristers). This is likely to be a prohibited
referral fee and therefore in breach of the
Handbook (BSB Guidance on Referral and
Marketing Arrangements for Barristers).
You should agree to accept the brief as Incorrect. This would not be the best advice here
having discussed it with your clerks, they and you should refuse to accept the instructions.
advise those financial arrangements are You must not pay or receive referral fees (RC10
commonplace. Handbook) and a breach of RC10 is likely to
breach your duty to refrain from behaving in a
You should refuse to accept the instructions Incorrect. This would not be the best advice here
on the basis that has been suggested to you and you should refuse to accept the instructions.
by the solicitor, as your clerks advised the You must not pay or receive referral fees (RC10
solicitor is usually paid 1% of the total brief Handbook) and a breach of RC10 is likely to
fee. breach your duty to refrain from behaving in a
Question 14
When you attend court to conduct a contact case in family proceedings you are unable
to find your opponent counsel. You manage to secure some time from the court to
discuss reaching a compromise. Eventually your opponent arrives over one hour late.
You begin to explain that the court allowed time for discussions, but he tells you that
he is unwilling to discuss the case with you. It is obvious to you at this point that he is
drunk. You can smell alcohol on his breath, his speech is slurred, and he appears to be
staggering as he moves. He is clearly incapable of conducting the hearing. You try to
talk to him about this, but again he simply says that he is unwilling to talk to you. After
a further 5 minutes he approaches you and asks you to tell the judge that he is ill. He
then leaves the court building.
What is the single best answer as to what you should do in this situation?
[A] You must tell the judge of your opponent’s serious misconduct and then the judge will
decide if the matter should be reported to the BSB.
[B] You are duty bound to report your opponent yourself to the BSB for serious
misconduct.
[C] There is no requirement for you to do anything here. You have no proof that your
opponent was drunk and so you should not allege serious misconduct to the BSB in
this situation.
[D] There is no requirement for you to do anything here. You are not under a duty to report
serious misconduct by others if the facts giving rise to the serious misconduct 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.
You are duty bound to report your opponent Correct. Under rC66, you must report to the Bar
yourself to the BSB for serious misconduct. Standards Board if you have reasonable
grounds to believe that there has been serious
misconduct by any barrister. (gC96.7) Serious
misconduct includes being drunk or under the
influence of drugs in court. Note also the effect
of gC96.8, which is that if you don’t report him,
you have to report yourself.
You must tell the judge of your opponent’s Incorrect. Under rC66, it is your duty to report to
serious misconduct and then the judge will the Bar Standards Board if you have reasonable
decide if the matter should be reported to the grounds to believe that there has been serious
BSB. misconduct by any barrister. This is subject to
the exceptions in rC68, however here it seems
unlikely on the facts that your opponent will have
reported himself and there is no reason to
believe that the judge has reported the matter
already.

There is no requirement for you to do Incorrect. Subject Rules rC67 and rC68, you
anything here. You have no proof that your must report to the Bar Standards Board if you
opponent was drunk and so you should not have reasonable grounds to believe that there
allege serious misconduct to the BSB in this has been serious misconduct by a barrister.
situation. rC67 states that you must never make, or
threaten to make, a report under Rule rC66
without a genuine and reasonably held belief
that Rule rC66 applies. On the facts of the
scenario, your observations give you reasonable
grounds to believe that he is drunk. Therefore,
you must report your opponent here to the BSB.
There is no requirement for you to do Incorrect. On the facts of this scenario, while the
anything here. You are not under a duty to matters openly occurred in public, there is no
report serious misconduct by others if the information to suggest how it might have come
facts giving rise to the serious misconduct are to the attention of the BSB. It seems unlikely on
in the public domain and the circumstances the facts that your opponent will have reported
are such that you reasonably consider it likely himself and there is no reason to believe that
that the facts will have come to the attention the judge has reported the matter already.
of the Bar Standards Board. Therefore, it is your duty to report the matter to
the BSB yourself. Note also the effect of gC96.8,
which is that if you don’t report him, you have to
report yourself.
Question 15
You represent the Defendant in his Crown Court proceedings on an allegation of

robbery. You hold a conference in chambers with the client two weeks before the trial
to advise him on the strength of the evidence and to take his final instructions. At the
end of the conference, you advise him that the evidence against him is strong. You go
through the sentencing guidelines with him and state that if he is convicted following
the trial, he is likely to receive a custodial sentence. The client says that will not cope
in prison and that he is now thinking of “legging it” before the trial. You strongly advise
him against doing so and remind him of the possible penalties for failing to surrender.
On the day of the trial, the Defendant does not attend. Neither you, nor your instructing
solicitor, have heard anything from the client since the conference. In the Defendant’s
absence, the prosecution seek a warrant without bail to secure your client’s attendance
in the future. Before granting the application, the trial judge asks you if you know
anything as to why your client has not attended for his trial.
What is the single best answer as to what your position should be in this situation?
[A] You tell the judge that you have no idea why your client has failed to attend but that
you cannot oppose the prosecution’s application without further instruction from your
client.
[B] You tell the judge that your client indicated to you two weeks ago that he might abscond
and therefore his absence is not a surprise.
[C] You inform the judge that you are not able to answer his question but that you cannot
oppose the prosecution’s application.
[D] You act in your client’s best interests and make a plausible excuse by saying that he
has been delayed on public transport and request that the court adjourns for a few
hours in order to allow him time to arrive. You then make every effort to contact the
client for further instruction.
You inform the judge that you are not able to Correct. You must not disclose what your client
answer his question but that you cannot said to you in conference. You have a duty of
oppose the prosecution’s application. confidentiality to each client under CD6.
Therefore, you should not disclose what your
client told you in conference. Your duty to act in
the best interests of each client is subject to your
duty to the court (rC4). Your duty to the court
does not require you to act in breach of your
duty to keep the affairs of each client
confidential (rC5).However, you must not
mislead the court by, for example, suggesting
that you have no idea why he failed to attend.
However, Rule C6 requires you not knowingly to
mislead the court (gC8).
You tell the judge that you have no idea why Incorrect. You cannot suggest that you have no
your client has failed to attend but that you idea why your client has failed to attend. Under
CD3 you must act with honesty and integrity.
cannot oppose the prosecution’s application That duty includes the fact (rC9) that you must
without further instruction from your client. not knowingly or recklessly mislead or attempt to
mislead anyone. Under rC6, you must not make
submissions, representations or any other
statement which you know, or are instructed, are
untrue or misleading.
You tell the judge that your client indicated to Incorrect. Your duty to the court does not require
you two weeks ago that he might abscond you to act in breach of your duty to keep the
and therefore his absence is not a surprise. affairs of each client confidential (rC5). Your
duties to the court do 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. Therefore, you should not
disclose what your client told you in conference.
You act in your client’s best interests and Incorrect. You must not mislead the court or
make a plausible excuse by saying that he make submissions, representations or any other
has been delayed on public transport and statement which you know, or are instructed, are
request that the court adjourns for a few untrue or misleading (rC6). (rC8) You must not
hours in order to allow him time to arrive. You do anything which could reasonably be seen by
then make every effort to contact the client the public to undermine your honesty, integrity
for further instruction. (CD3) and independence (CD4). Following
gC14, 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, as
required by CD3 and CD4. You should follow
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).
Question 16
You are a pupil within Chambers. You have almost completed your second six months
of pupillage. Your clerks have arranged a 4:30pm conference in chambers for you, to
meet a client for a case listed tomorrow. At 4pm that same day, your pupil supervisor
emails you to say that the fellow members of chambers are so impressed with your
performance during pupillage that you are going to be offered a tenancy following a full
chambers meeting next week. In anticipation of your acceptance of this offer, he tells
you that your name has already been added to the list of tenants on the board outside.
You are thrilled and you intend to accept. You immediately go outside to look at the
board. You are looking at your recently added name when your client arrives, sees your
name freshly painted and offers his congratulations to you on becoming a tenant.
What is the most appropriate approach as to what you should do in such

circumstances?
[A] You should inform the client of the true position and assert that you are still a pupil
barrister. You should explain that you only have one week left of pupillage and that it
is acceptable for your name to be placed on the board at this stage, as you intend to
accept chambers offer of tenancy next week.
[B] You should inform the client of the true position and assert that you are still a pupil
barrister. You should also ask the members of chambers to remove your name from
the board until the tenancy decision has been ratified and you have formally accepted
the offer in writing.
[C] You should tell the client that you are now formally a tenant for chambers as the board
rightly reflects, but that will not affect your representation of him tomorrow.
[D] You should say nothing, accept your client’s congratulations and simply proceed with
the conference as planned. This is acceptable because you have already decided to
accept the tenancy offer next week.
You should inform the client of the true Correct. Under rC19 If you supply, or offer to
position and assert that you are still a pupil supply, legal services, you must not mislead, or
barrister. You should also ask the members cause or permit to be misled, any person to
of chambers to remove your name from the whom you supply, or offer to supply, legal
board until the tenancy decision has been services about whether you are entitled to
ratified and you have formally accepted the supply those services and the extent to which
offer in writing. you are regulated when providing those services
and by whom. You should not permit your name
to appear listed as a tenant when you are still a
pupil (gC62 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. As it has been painted on the list without
your knowledge, now you are aware of it you
should act to mitigate the effects of the breach
of rC19.

You should inform the client of the true Incorrect. You should not permit your name to
position and assert that you are still a pupil appear listed as a tenant when you are still a
barrister. You should explain that you only pupil (gC62 If you are a pupil, you should not
have one week left of pupillage and that it is hold yourself out as a member of chambers or
acceptable for your name to be placed on the permit your name to appear as such). You
board at this stage, as you intend to accept should ensure the client understands your
chambers offer of tenancy next week. status. As it has been painted on the list without
your knowledge, now you are aware of it you
should act to mitigate the effects of the breach
of rC19.

You should tell the client that you are now
formally a tenant for chambers as the board Incorrect. You should not hold yourself out as a
rightly reflects, but that will not affect your member of chambers (gC62) before you have
representation of him tomorrow. qualified or permit your name to appear as such.
You should ensure the client understands your
status as a pupil, even if it is only for one more
week. Under rC19 if you supply legal services,
you must not mislead, or cause or permit to be
misled, any person to whom you supply legal
services about whether you are entitled to
supply those services and the extent to which
you are regulated when providing those services
and by whom.
You should say nothing, accept your client’s Incorrect. CD10 applies here. You must take
congratulations and simply proceed with the reasonable steps to manage your practice, or
conference as planned. This is acceptable carry out your role within your practice,
because you have already decided to accept competently and in such a way as to achieve
the tenancy offer next week. compliance with your legal and regulatory
obligations. This includes an obligation to take
all reasonable steps to mitigate the effects of
any breach of those legal and regulatory
obligations once you become aware of the
same. Under rC19 if you supply legal services,
you must not mislead, or cause or permit to be
misled, any person to whom you supply legal
services about whether you are entitled to
supply those services and the extent to which
you are regulated when providing those services
and by whom. You should ensure the client
understands your status.
Question 17
You are acting for Mark and Janet, a brother and sister who are co-defendants to a claim
brought by another of their siblings, Vera. The claim relates to the extent of their
respective shares in the ownership of a property. You have seen them in conference
previously over this matter and are due to see them again today to discuss an offer of
settlement which has been made by Vera. Mark arrives in chambers first and is shown
into the conference room with your instructing solicitor. Whilst waiting for Janet, Mark
says, “I hope you are going to tell Janet that this all needs settling right away. She’s
adamant she wants to fight this all the way to trial, but I just want it over and done with.
All this case has shown me is that Janet and Vera are as bad as one another, I think I’m
the only one capable of telling the truth in our family. Obviously, don’t tell her I said
that!”
[A] You should wait for Janet to arrive, explain to her what Mark has said, and tell both
clients that you now have a conflict of interest and require them to give you their
consent to continue representing them both.
[B] You should wait for Janet to arrive, take her outside of the room and explain to her that
you now have a conflict of interest and can only continue to represent Mark in the case.
[C] You should wait for Janet to arrive and ask for her opinion on the settlement offer that
has been made before making a decision what to do.
[D] You should wait for Janet to arrive and explain to both clients that, due to a conflict of
interest, you will no longer be able to act for them in relation to this dispute, and that it
would be in their best interests to obtain new and separate legal representation.
You should wait for Janet to arrive and Correct. You have a duty to act in the best
explain to both clients that, due to a conflict of interests of each client as if they were your only
interest, you will no longer be able to act for client (CD2 and gC37). You also owe a duty of
them in relation to this dispute, and that it confidentiality to each (CD6). A conflict of
would be in their best interests to obtain new interest has arisen between existing clients here
and separate legal representation. because (i) they appear to have diverging
interests in the outcome of the claim – one is
keen to settle and the other is not; (ii) there is a
risk that their evidence at trial would not be
consistent; and (iii) in order to best represent
Janet you would be required to divulge
confidential information given to you by Mark,
and vice versa. As you have taken instructions
from both Janet and Mark by this point, you are
unlikely to be able to continue acting for either
one of them in their bests interests without
breaching the confidentiality of the other. In
these circumstances you must cease to act
(rC25 and rC21.3/4) and advise your clients that
their interests are best served by obtaining
different and separate representation (rC17).
You should wait for Janet to arrive, explain to Incorrect. Ensure that you are familiar with your
her what Mark has said, and tell both clients duties where there is a conflict of interest or a
that you now have a conflict of interest and real risk of one. You may wish to consider
require them to give you their consent to further your duties under CD2 and CD6 and look
continue representing them both. at gC37. Further, conduct rules 21.3, 21.4, 25
and 17 are all relevant here. In this scenario, a
conflict arises between existing clients in respect
of their interests in the outcome of the litigation.
There is also the risk of their evidence conflicting
with one another’s if the matter proceeds to trial.
Further, you have been placed in the difficult
position of one client telling you something
confidentially, that he does not wish to be
passed to the other client. Whilst in some
circumstances you can continue to act for clients
(or one of them) where a conflict exists, there
are conditions that must be met (see rC21.3). In
all cases you must be satisfied that you can
continue to act in the best interests of each
client and it does not appear you can do so here
whilst also adhering to your ongoing duty of
confidentiality.
You should wait for Janet to arrive, take her Incorrect. Ensure that you are familiar with your
outside of the room and explain to her that duties where there is a conflict of interest or a
you now have a conflict of interest and can real risk of one. You may wish to consider
only continue to represent Mark in the case. further your duties under CD2 and CD6 and look
at gC37. Further, conduct rules 21.3, 21.4, 25
confidentiality.
You should wait for Janet to arrive and ask Incorrect. Ensure that you are familiar with your
for her opinion on the settlement offer that duties where there is a conflict of interest or a
real risk of one. You may wish to consider
has been made before making a decision further your duties under CD2 and CD6 and look
what to do. at gC37. Further, conduct rules 21.3, 21.4, 25
confidentiality.
Question 18
You are representing the Defendant at his trial for burglary. Previously the Defendant
has always given instructions that he was not responsible for the burglary and that he
was at his mother’s house all day on the date of the offence. He has previously said
that his mother will give evidence in support of this at the trial. When you see him in
conference on the morning of trial he tells you that he was the burglar and has no
defence to the charge.
Which of the following best describes what you should do?
[A] You are entitled to represent the Defendant in his trial but must not put forward a
positive defence.
[B] You are entitled to represent the Defendant in his trial and can put forward the defence
as originally instructed.
[C] You are entitled to represent the Defendant in his trial and can call the Defendant’s
mother to give evidence as originally instructed.
[D] You are entitled to represent the Defendant and must see the judge in chambers
beforehand to disclose the Defendant’s confession.
You are entitled to represent the Defendant in Correct. This answer correctly states the rules
his trial but must not put forward a positive on disclosure of confidential information in these
defence. circumstances (BSB Handbook CD1, CD2, CD6,
rC3.1, rC4). Although the other answers sound
plausible, they are incorrect. Whilst you are
entitled to represent the Defendant in his trial,
you cannot put forward the defence as originally
instructed because that would amount to
misleading the court. Your duty to your lay client
is subject to your duty to the court. Whilst you
are entitled to represent the Defendant in his
trial, you cannot call the Defendant’s mother to
give evidence as originally instructed because
this would be misleading the court. Your duty to
your lay client is subject to your duty to the
court. Whilst you are entitled to represent the
Defendant, you cannot disclose the Defendant’s
confession to judge because that would be a
breach of your duty to act in the best interest of
the client and to keep the client’s affairs
confidential (CD2, CD6).
You are entitled to represent the Defendant in Incorrect. Please review your materials about
his trial and can put forward the defence as the duty to the court in the administration of
originally instructed. justice (including the duty not to mislead the
court), the duty to the client, and the duty to
keep the affairs of each client confidential.
Whilst you are entitled to represent the
Defendant in his trial, you cannot put forward the
defence as originally instructed because that
would amount to misleading the court. Your duty
to your lay client is subject to your duty to the
court.
You are entitled to represent the Defendant in Incorrect. Please review your materials about
his trial and can call the Defendant’s mother the duty to the court in the administration of
to give evidence as originally instructed. justice (including the duty not to mislead the
court) and the duty to act in the best interests of
the client. Whilst you are entitled to represent
the Defendant in his trial, you cannot call the
Defendant’s mother to give evidence as
originally instructed because this would be
misleading the court.
You are entitled to represent the Defendant Incorrect. Please review your materials about
and must see the judge in chambers the duty to the court in the administration of
beforehand to disclose the Defendant’s justice (including the duty not to mislead the
confession. court) and the duty to act in the best interests of
the client. Whilst you are entitled to represent
the Defendant in his trial, you cannot disclose
confidential client information without the
consent of the client.
Question 19
You are a barrister specialising in family law. You represent the husband in divorce
proceedings. Your client requests that you serve some additional documents during a
hearing. These documents are important because they support the husband’s case on
a central issue in the case. At the hearing, the Judge informs you, after the witnesses
have been questioned, that she will take a break and hear submissions after lunch.
During the lunch break, you realise that you forgot to serve the client’s additional
documents.
Which one of the following statements best describes what you should do?
[A] Continue with the hearing because it is too late to serve the additional documents.
[B] Inform the Judge about the additional documents when the case is called back into
court.
[C] Return the additional documents to the client.
[D] Request the instructing solicitors to serve the additional documents on the Court and
the Wife after the hearing.
Inform the Judge about the additional Correct. You must not knowingly mislead the
documents when the case is called back into court, which also includes inadvertently
court. misleading the court if you later realise that you
have misled the court and fail to correct the
position. You should, therefore, correct the
position by informing the Judge about the
additional documents when the case is called
back into court.
Continue with the hearing because it is too Incorrect. See Rc3 and 4. If you were to
late to serve the additional documents. continue with the hearing on the basis that it is
too late to serve the additional documents, you
will be in breach of your duty not to mislead the
court. You would have failed to correct your
mistake in not serving the important additional
client documentation. You are being reckless,
and indifferent to the truth.
Return the additional documents to the client. Incorrect. By returning the additional documents
to the client, you have acted in breach of CD 2
(must act in the best interests of each client), CD
7 (must provide a competent standard of work
and service to each client), and more importantly
the overriding duty under CD1 (must observe
your duty to the court in the administration of
justice). The documents are important because
they supporting the client’s case on a central
issue in the case. The Judge will not have had
an opportunity to consider the documents before
making a decision on the case. You have failed
to act in the best interests of the client by
denying them the opportunity for their case to be
properly heard.
Request the instructing solicitors to serve the Incorrect. You may be acting in the client’s best
additional documents on the Court and the interests and not misleading the court by
Wife after the hearing. requesting instructing solicitors to serve the
additional documents on the Court and the Wife
after the hearing. However you realised your
mistake during the course of the hearing. It is
difficult to see how you are fearlessly promoting
your client’s best interests in the circumstances.
If you decide to serve the documents post-
hearing, you could be knowingly or recklessly
misleading the court by keeping quiet about the
documents during submissions and failing to
correct the position.
Question 20
You are instructed to advise a client in a straightforward contractual dispute. The fee
agreed is £300 + VAT per hour to be capped at 5 hours. You are a registered pupil
supervisor, and you give your pupil the brief to work on. She works for five hours on
the brief and hands you the completed work. You read it and you are extremely pleased
with what she has done. She has correctly identified all the legal issues and she has
addressed the specific points raised by the client within the instructions. After making
a few stylistic changes, you simply sign it and send it off with a fee note for £1,500 +
VAT.
Are you allowed to do this?
[A] No. You are misleading the client as to who completed the work and who should be
paid for it.
[B] Yes, so long as you suitably remunerate the pupil once the fee has been received.
[C] Yes. You are allowed to do this in your role as pupil supervisor, as it was your own
pupil that completed the work.
[D] Yes. So long as the work has been completed as per the client’s instructions and
addresses the points raised, there is not an issue as to whose name is on the advice.
No. You are misleading the client as to who Correct. If you are a self-employed barrister, you
completed the work and who should be paid would, for example, likely be regarded as having
for it. breached Rule C19 if you charged at your own
hourly rate for work done by a devil or pupil
(gC59). Moreover, such conduct may well
breach your duty to act with honesty and
integrity (CD3). You must tell the client that your
pupil did the work, under your supervision,
explaining that you are satisfied that the work is
accurate before negotiating a lower fee to reflect
that your pupil did the work.
Yes, so long as you suitably remunerate the Incorrect. You are misleading the client as to
pupil once the fee has been received. who completed the work and who should be
paid for it. Such conduct may well breach your
duty to act with honesty and integrity (CD3).
Yes. You are allowed to do this in your role Incorrect. Under rC19, if you supply, or offer to
as pupil supervisor, as it was your own pupil supply, legal services, you must not mislead, or
that completed the work. cause or permit to be misled, any person to
whom you supply, or offer to supply, legal
services about who will carry out the work and
the basis of charging. If you are a self-employed
barrister, you would, for example, likely be
regarded as having breached Rule C19 if you
charged at your own hourly rate for work done
by a devil or pupil (gC59).
Yes. So long as the work has been Incorrect. Applying CD3, you must act with
completed as per the client’s instructions and honesty and integrity. It would be dishonest to
addresses the points raised, there is not an sign the work off as your own; not only as you
issue as to whose name is on the advice are not being honest about who did the work,
but as you are charging for your time which you
did not in fact spend on the work. Under CD5,
you must not behave in a way which is likely to
diminish the trust and confidence which the
public places in you or in the profession. Under
oC20, clients must understand who is
responsible for work done for them.
Question 21
You are a criminal practitioner at a set of chambers. You have been practising for
several years and try to do as much of your work electronically where you can. In order
to back up your files you regularly transfer them to a USB flash drive. You have
developed a collection of them, and put a sticky label on each to identify the month and
year of the data stored on each drive. You are not very technologically advanced so
you have not encrypted the drives. You keep them in a plastic box in the stationery
drawer of you office at home. You are of the view that you adhering to you
responsibilities under the Handbook.
Are you acting in accordance with the BSB Handbook?
[A] Yes, as the USB drives are secure at home and therefore the information will remain
confidential.
[B] Yes, as USB sticks are a sensible way to back up electronic files and you are keeping
them secure at home.
[C] No, you should neither be using the USB drives to back-up files nor are you storing
them correctly.
[D] No, you should not use USB sticks to store or back-up files, but if you do, you are
storing them correctly.
No, you should neither be using the USB Correct. USB drives should be used for
drives to back-up files nor are you storing immediate business purpose only and should be
them correctly. encrypted. You should not be using them to
back-up files. If you have used them for short-
term storage you should lock them securely in a
drawer at home. Once you have used it for
temporary storage, you should delete the file
securely from the USB drive. (Confidentiality
guidance)
Yes, as the USB drives are secure at home Incorrect. The USB drives are not being stored
and therefore the information will remain correctly. They are not secure, unless the
confidential. drawer is locked and the key removed from the
drawer.
Yes, as USB sticks are a sensible way to Incorrect. The USB drives are not being stored
back up electronic files and you are keeping correctly or securely. Neither are they an
them secure at home. appropriate method of storage or back-up. USB
drives should be used for immediate business
purpose only and should be encrypted.

No, you should not use USB sticks to store or Incorrect. The USB drives are not being stored
back-up files, but if you do, you are storing correctly or securely. Neither are they an
them correctly. appropriate method of storage or back-up. USB
drives should be used for immediate business
purpose only and should be encrypted.
Question 22
You are a barrister in your second year of tenancy in Chambers and get into a heated
discussion on twitter late one Saturday evening. You express strong opinions and
accuse another user, on twitter, of being a “hypocritical privileged bigot”.
If you were accused of behaving unethically in this situation what is the likely position?
[A] You are likely to be in breach of CD5 in these circumstances.
[B] You are likely to be in breach of CD3, CD5 and CD8 in these circumstances.
[C] You are likely to be in breach of CD3 and CD5 in these circumstances.
[D] You have not behaved unethically, because you were expressing a private opinion in
your own time.
You are likely to be in breach of CD5 in these Correct. You are likely to be in breach of CD5,
circumstances. which requires you not to behave in a way that is
likely to undermine trust and confidence in the
profession. CD3 requires you to act with honesty
and integrity at all times. A heated debate on a
public forum in these terms could be a breach of
this obligation. However, rC2.1 states that the
CDs apply when practising or otherwise
providing legal services, and in addition CD5
and CD9 apply at all times. The barrister was
not practising or providing legal services when
he sent the tweet, so he is only likely to have
breached CD5.
You are likely to be in breach of CD3, CD5 Incorrect. CD3 requires you to act with honesty
and CD8 in these circumstances. and integrity at all times. A heated debate on a
this obligation, but see below. CD5 requires you
not to behave in a way that is likely to undermine
trust and confidence in the profession. In the
circumstances you are likely to be in breach of
CD5. CD8 requires you not to discriminate
unlawfully against anyone. The words used are
not discriminatory in relation to the protected
characteristics, so purely based on the words
used, this is unlikely to be contrary to CD8.
rC2.1 states that the CDs apply when practising
or otherwise providing legal services, and in
addition CD5 and CD9 apply at all times. The
barrister was not practising or providing legal
services when he sent the tweet, so he is only
likely to have breached CD5.

You are likely to be in breach of CD3 and Incorrect. CD5 requires you not to behave in a
CD5 in these circumstances. way that is likely to undermine trust and
confidence in the profession. In the
circumstances you are likely to be in breach of
CD5. CD3 requires you to act with honesty and
integrity at all times. A heated debate on a
this obligation. However rC2.1 states that the
CDs apply when practising or otherwise
providing legal services, and in addition CD5
and CD9 apply at all times. The barrister was
not practising or providing legal services when
he sent the tweet, so he is only likely to have
breached CD5.
You have not behaved unethically, because Incorrect. CD3 requires you to act with honesty
you were expressing a private opinion in your and integrity at all times. A heated debate on a
own time. public forum in these terms could be a breach of
this obligation but see below. CD5 requires you
not to behave in a way that is likely to undermine
trust and confidence in the profession. rC2.1
states that the CDs apply when practising or
otherwise providing legal services, and in
addition CD5 and CD9 apply at all times. The
barrister was not practising or providing legal
services when he sent the tweet, so he is only
likely to have breached CD5.
Question 23
You are representing the Defendant for his sentencing hearing at the Magistrates Court.
In conference before the sentencing hearing, the Defendant informs you that he has
previous convictions similar to the current offence. No previous convictions appear
on the antecedent history you have received from the Prosecution. The previous
conviction disclosed by the Defendant would not lead to a mandatory sentence. You
ask the Defendant’s consent to disclose the previous convictions. He refuses consent.
Which of the following describes how you may proceed?
[A] You can represent the Defendant at the sentencing hearing and address the mitigating
features of the offence he has committed.
[B] You can represent the Defendant at the sentencing hearing and advance the
Defendant as a man of positive good character.
[C] You can represent the Defendant at the sentencing hearing and call a character
witness.
[D] You can represent the Defendant at the sentencing hearing and advance mitigation
that the offending is out of character.
You can represent the Defendant at the Correct. This answer correctly states how you
sentencing hearing and address the can proceed. As the non-disclosure of the
mitigating features of the offence he has previous convictions would not lead to the court
committed. failing to impose a mandatory sentence, you can
continue to represent the Defendant. However,
in doing so you must not say anything that
misleads the court. Therefore you can address
the seriousness of the offence. Further, in light
of the Defendant’s instructions about his
previous convictions, you cannot advance him
as a man of good character. Additionally, in light
of the Defendant’s instructions about his
previous convictions, you cannot call evidence
to assert his good character. Finally, in light of
the Defendant’s instructions about his previous
convictions, you cannot assert that the offending
is out of character. (BSB Handbook CD1, rC3.1,
rC4, gC12)
You can represent the Defendant at the Incorrect. Please review your materials about
sentencing hearing and advance the the duty to the court in the administration of
Defendant as a man of positive good justice, the requirement not to mislead the court,
character. with particular regard to the disclosure of
previous convictions. As the non-disclosure of
the previous convictions would not lead to the
court failing to impose a mandatory sentence,
you can continue to represent the Defendant.
However, in doing so you must not say anything
that misleads the court. Therefore, in light of the
Defendant’s instructions about his previous
convictions, you cannot advance him as a man
of good character. (BSB Handbook CD1, rC3.1,
rC4, gC12)
sentencing hearing and call a character the duty to the court in the administration of
witness. justice, the requirement not to mislead the court,
with particular regard to the disclosure of
convictions, you cannot call evidence to assert
his good character. (BSB Handbook CD1, rC3.1,
rC4, gC12)
sentencing hearing and advance mitigation the duty to the court in the administration of
that the offending is out of character. justice, the requirement not to mislead the court,
with particular regard to the disclosure of
convictions, you cannot assert that the offending
is out of character. (BSB Handbook CD1, rC3.1,
rC4, gC12)
Question 24
You are instructed to represent the Defendant at trial in the Crown Court. He is charged
with burglary. The prosecution case rests on ID evidence; a police witness says that
she clearly saw John (who has a very distinctive facial tattoo of a spider) running away
from the complainant’s property carrying a DVD player at around the time of the alleged
offence. Your client denies the offence and has given you instructions that he was in
another part of town with a group of friends.
In conference immediately before the trial, your client tells you he has ‘heard on the
grapevine’ that a notorious local thief, Beverly Craven, was responsible for the burglary
and that she has also been interviewed by the police. You have seen Craven in court
before but have never represented her. Unlike your client, she is of very short and of
slight build. She has no facial tattoos. You do not have the opportunity to follow up on
your client’s instructions or investigate.
Which of the following answers most accurately reflects what you must advise your
client?
[A] You can put the allegation to the officer without mentioning Craven by name and simply
suggest a third party was responsible as you have instructions.
[B] You can make an allegation against Craven if your client will say the same when he
gives evidence.
[C] You cannot allege that Beverly Craven is guilty of the offence as you have no grounds
for the allegation.
[D] You can't put the allegation to any witnesses, but you can tell the jury about it in your
closing speech.
You cannot allege that Beverly Craven is Correct. You cannot allege that Beverly Craven
guilty of the offence as you have no grounds is guilty of the offence. Because you do not have
for the allegation. any reasonable grounds for the allegation,
rC7.3. It is clear that there has been no time to
investigate the allegation by the Defendant. It
has been heard as a rumour and Craven bears
no resemblance to the Defendant. You therefore
have no grounds and it is your ethical duty not to
name and incriminate someone who is not in the
courtroom. This is the best answer.
You can put the allegation to the officer Incorrect. You cannot make the allegation even
without mentioning Craven by name and without mentioning Craven by name, rule C7.3.
simply suggest a third party was responsible Even though you can make an allegation in
as you have instructions. court against a third party without naming them if
reasonably necessary, you must still have
reasonable grounds for the allegation.

You can make an allegation against Craven if Incorrect. You cannot make the allegation
your client will say the same when he gives without reasonable grounds, even if your client
evidence. supports it in evidence. See rC7.3.
You can't put the allegation to any witnesses, Incorrect. Remember that you must give
but you can tell the jury about it in your witnesses the opportunity to answer an
closing speech. allegation before relying on it in your closing
speech. See rC7.2.
Question 25
You are a barrister instructed in to represent the Defendant in a mortgage possession

hearing. Your instructing solicitor, Mr Golen, has indicated that he will not be in
attendance at the hearing and has arranged for you to meet the client beforehand at
Court. When you arrive the usher points out your client to you, and you go over and
introduce yourself. Your client is very confused when you arrive and asks where Mr
Golen is. She becomes somewhat aggitated and anxious and keeps on asking to speak
to Mr Golen, and asking why Mr Golen is not representing her anymore.
Which of the following statements best describes what you should do?
[A] Explain that you are now in charge of his case.
[B] Explain Mr Golden has prepared the case papers and you have been instructed to
make arguments on their behalf in court.
[C] Request Mr Golen to attend court to represent the client in court.
[D] Cease to act on the matter and return instructions because the Client wants Mr
Golen.
Explain Mr Golden has prepared the case Correct. This answer reflects compliance with
papers and you have been instructed to CD2 (acting in best interests of each client) and
make arguments on their behalf in court. CD7 (must provide competent standard of work
and service of work to each client). Whilst rC15
and rC16 set out specific obligations, they do
not assist directly. The Guidance at gC41 states
a barrister should remember that the client may
not be familiar with legal proceedings and may
find it difficult and stressful. The barrister should
do what they reasonably can to ensure that the
client understands the process and what to
expect from it and from you. The barrister should
try to avoid unnecessary distress for the client.
This is particularly important where they are
dealing with a vulnerable client.
Explain that you are now in charge of her Incorrect. A barrister should ensure a client
case. clearly understands who is responsible for the
work done for them. The barrister is not now in
charge of the case. The professional client still
has conduct of the case and has instructed the
barrister to represent the lay client in court.
Request Mr Golen to attend court to Incorrect. Instructions should not be returned in

represent the client in court. circumstances which adversely affect the
administration of justice, access to justice or (so
far as compatible with these) the best interests
of the client. The barrister would cause a
considerable inconvenience to the client,
professional client and to the court in seeking to
request the solicitor to attend court to represent
the client. The barrister has accepted
instructions under the cab-rank rule (rC29).
Cease to act on the matter and return Incorrect. rC25 and rC26 sets out the rules on
instructions because the Client wants Mr returning instructions. Ceasing to act and
Golen. returning instructions on the basis of client
confusion as to the barrister’s role is not a valid
reason.
Question 26
You are a tenant in chambers specialising in landlord and tenant work. You receive a
brief in chambers, in your name, from an Instructing Solicitor who you do a lot of work
for. It is a major case and the trial is listed for six months’ time. You intend to accept
the instructions.
What are your obligations on first accepting these instructions?
[A] You should confirm acceptance of the brief by email to your Instructing Solicitor,
confirming the terms and basis on which you will be acting. This should include the
basis of your charging.
[B] You should confirm acceptance of the brief in writing to your Instructing Solicitor,
confirming the terms and basis on which you will be acting.
[C] You should confirm acceptance of the brief in writing to your Instructing Solicitor
confirming the terms and basis on which you will be acting, but as you do a lot of work
for them there is no need as they will know this already.
[D] You should confirm acceptance of the brief to your lay client, confirming the terms and
basis on which you will be acting, including the charge.
You should confirm acceptance of the brief Correct. Under rC22.1 you must provide this
by email to your Instructing Solicitor, information on first accepting instructions.
confirming the terms and basis on which you rC22.2 tells you it must be sent to the
will be acting. This should include the basis of professional client where you have one. gC79
your charging. confirms it can be by email.
You should confirm acceptance of the brief in Incorrect. While this answer is not wrong, it is
writing to your Instructing Solicitor, confirming incomplete as it misses the requirement to set
the terms and basis on which you will be out the basis of charging, as per rC22.1
acting.
You should confirm acceptance of the brief in Incorrect. The fact that you work regularly for the
writing to your Instructing Solicitor confirming Instructing Solicitors is irrelevant to the
the terms and basis on which you will be information you must provide.
acting, but as you do a lot of work for them
there is no need as they will know this
already.
You should confirm acceptance of the brief to Incorrect. As you have a professional client, ie
your lay client, confirming the terms and your Instructing Solicitor, you should provide the
basis on which you will be acting, including confirmation to them, as per rC22.2
the charge.
Question 27
You are a barrister in independent practice. You are parking your car outside of court
when you are approached by a parking attendant who says you will be issued with a
parking ticket unless you move from the bay where you are parked as it is designated
for court staff only.
You get embroiled in a heated discussion with the parking attendant who ultimately
issues you with a ticket. You are extremely cross and rip up the ticket in front of the
attendant before getting back into your car and locking the doors. When you look at the
ticket later you see you can challenge it and you elect for a trial. You give evidence at
the trial on your own behalf but are convicted. In their closing remarks the Magistrates
state that they did not believe you gave credible evidence and they preferred the
evidence of the parking attendant. You are then fined £150 plus court costs which you
are ordered to pay on the day of your conviction.
Which one of the following statements best describes how you should react to your
conviction?
[A] You must report this matter promptly to the Bar Standards Board because you have
been convicted of a criminal offence following a not guilty plea.
[B] You must report this matter promptly to the Bar Standards Board because parking
offences which are dealt with by way of a fixed penalty are capable of diminishing the
trust and confidence which the public places in you or in the profession.
[C] You must report yourself to the Head of Chambers whose responsibility it is to report
you to the Bar Standards Board.
[D] There are no consequences for your practice as a barrister. This is only a minor
criminal offence and therefore not a breach of rC8 or rC9.
There are no consequences for your practice Correct. You have been convicted of a minor
as a barrister. This is only a minor criminal criminal offence. See gC27.
offence and therefore not a breach of rC8 or
rC9.
You must report this matter promptly to the Incorrect. See gC27. This is a minor criminal
Bar Standards Board because you have been offence. You must only report yourself if you are
convicted of a criminal offence following a not charged with an indictable offence or have been
guilty plea. convicted of a criminal offence other than a
minor criminal defence as defined in rC65.
You must report this matter promptly to the Incorrect. There is no need to report parking
Bar Standards Board because parking offence which are dealt with by way of a fixed
offences which are dealt with by way of a penalty notice. Such offences are not
fixed penalty are capable of diminishing the considered to diminish the trust and confidence
trust and confidence which the public places the public has in the profession.
in you or in the profession.
You must report yourself to the Head of Incorrect. Whilst you could inform your Head of
Chambers whose responsibility it is to report Chambers as there are no ethical consequences
you to the Bar Standards Board. for your practice there is no need for you or any
other barrister to report you to the Bar Standards
Board.
Question 28
You are representing a Claimant in a civil trial. Your client is part way through being
cross-examined when the court rises for the lunch adjournment. You gather up your
papers and you are the last person to leave the courtroom. As you leave, your client
stops you in the doorway and says that there is something very important and urgent
that he needs to discuss with you.
[A] You should ignore him and walk away.
[B] You should find somewhere private so you can take updated instructions.
[C] You should explain briefly to your client that you are not permitted to speak to him while
he is giving his evidence.
[D] You should listen to what he has to tell you before deciding what to do.
You should explain briefly to your client that Correct. Barristers must act with honesty and
you are not permitted to speak to him while integrity (CD3) and must not do anything which
he is giving his evidence. could reasonably be seen to undermine this
(rC8). This includes a duty not to rehearse,
practise with or coach a witness in respect of
their evidence. Specifically, 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 (rC9). The witness will normally be
reminded of this by the judge but, if not, it is
appropriate for you to explain the position
briefly. It may be possible to obtain permission
from your opponent or the court, so you can
ascertain the general nature of the client’s
query. You can then decide if this is something
which must be addressed urgently (and brought
to the attention of the court) or whether it is
something that should properly wait until the
evidence has concluded.
You should ignore him and walk away. Incorrect. Barristers must act with honesty and
integrity (CD3) and must not do anything which
could reasonably be seen to undermine this
(rC8). Ensure you understand the rules
regarding how to interact with witnesses at court
and, specifically, in relation to their evidence and
when they are giving evidence (rC9). Whilst it is
important that you are not seen engaging in
discussions with your client whist he is still
giving his evidence, there is nothing to prevent
you politely explaining the rules before walking
away. To do otherwise would be discourteous,
so this is not the best answer.
You should find somewhere private so you Incorrect. Barristers must act with honesty and
can take updated instructions. integrity (CD3) and must not do anything which
when they are giving evidence (rC9). It is
important that you do not (and are not seen to
be) engaging in discussions with your client
whilst he is still giving his evidence. In order to
determine whether there is an urgent issue that
requires immediate attention, you should first
obtain the permission of your opponent or the
court before ascertaining the general nature of
the issue.
You should listen to what he has to tell you Incorrect. Barristers must act with honesty and
before deciding what to do. integrity (CD3) and must not do anything which
when they are giving evidence (rC9). It is
important that you do not (and are not seen to
be) engaging in discussions with your client
whilst he is still giving his evidence. In order to
determine whether there is an urgent issue that
requires immediate attention, you should first
obtain the permission of your opponent or the
court before ascertaining from your client the
general nature of the issue.
Question 29
Your are a barrister specialising in criminal law. You receive a telephone call from your
brother, Theo, stating that he has been arrested and charged with possession of a class
b drug, namely cannabis. He is due to appear in court in 2 weeks time but has admitted
the offence in police interview and states that he was using it for relaxation purposes
as his job was really stressful. Theo is a journalist for a national newspaper and his
editor has been giving him a hard time lately, so needed something to relax. It will be a
straighforward case for you and it is likely that Theo will receive a small fine, as this is
his first offence. Theo has asked you to represent him in the case.
What is the most appropriate response to this request?
[A] You can accept the instructions, as this is a straightforward case, and you are more
than competent to deal with the matter.
[B] You can accept the instructions but you need to ensure that you maintain your
independence and not allow your personal relationship impact on your ability to deal
with the matter. Accordingly you should ask a fellow member of chambers to supervise
you on this case.
[C] You should explain to Theo that you are unable to represent him because the nature
of your relationship is such that it amounts to a personal conflict of interest.
[D] You are not entitled to refuse the instructions, as to do so, would place you in breach
of the cab-rank rule. You must therefore accept the instructions.
You should explain to Theo that you are This is correct. In accordance with rC21.2, you
unable to represent him because the nature must not accept instructions where there is a
of your relationship is such that it amounts to conflict of interest, or real risk of conflict of
a personal conflict of interest. interest, between your own personal interests
and the interests of the prospective client in
respect of the particular matter.
You can accept the instructions, as this is a This is incorrect. See rC21. Given the personal
straightforward case, and you are more than relationship that you have with Theo, you would
competent to deal with the matter. be in breach of rC21.2 and rC21.10 if you were
to accept these instructions, regardless of your
comptence.
You can accept the instructions but you need This is incorrect. See rC21. Given the personal
to ensure that you maintain your relationship that you have with Theo, you would
independence and not allow your personal be in breach of rC21.2 and rC21.10 if you were
relationship impact on your ability to deal with to accept these instructions. You are also likely
the matter. Accordingly you should ask a to be in breach of CD5. There is no requirement
fellow member of chambers to supervise you of supervision to circumvent this rule.
on this case.

You are not entitled to refuse the instructions, This is incorrect. This this not an instance where
as to do so, would place you in breach of the the cab-rank rule applies by virtue of rC30
cab-rank rule. You must therefore accept the which requires you to refuse the instructions
instructions. pursuant to rc21.2/21.10.
Question 30
You are cross-examining a witness in the middle of a trial. As part of your case theory,
you wish to show the witness as someone who loses their temper easily and becomes
very confrontational. You know that if you put this directly to the witness, she will deny
it so you think of another approach. You are aware that the witness lives alone and has
several cats. She is also clinically obese. You know that by asking questions about
these personal factors in cross-examination, you will invoke the response that you seek
and the Court will be able to see it for itself.
What are your ethical obligations in respect of asking this witness such questions?
[A] You can put these questions to the witness.
[B] You must not put such questions to the witness.
[C] Because these questions have a particular purpose in relation to your case theory, you
can put them to the witness.
[D] You must not put these questions to the witness, but you can draw the attention of
these factors to the tribunal when you are making your closing submissions.
You must not put such questions to the This is correct. In accordance with rC7, you
witness. must not make statements or ask questions
merely to insult, humiliate or annoy a witness or
any other person. To ask these questions of the
witness, would place you in breach of this rule.
You can put these questions to the witness. This is incorrect. You so do would amount to
abusing your role as an advocate pursuant to
rC7.1
Because these questions have a particular This is incorrect. These questions have no
purpose in relation to your case theory, you purpose other than to insult, humilate or annoy
can put them to the witness. the witness and thus in breach of rC7.1 .
You must not put these questions to the This is incorrect. rC7.1 also applies to
witness, but you can draw the attention of statements made. Furthermore, if you are
these factors to the tribunal when you are making an allegation about a witness, i.e., she
making your closing submissions. loses her temper easily, rC7.2 applies and
therefore you must have given the opportunity to
the witness to respond to the allegation in cross-
examination.

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