BPTC: PROFESSIONAL ETHICS SGS QUESTIONS

QUESTION 4

What rules deal with the relationship between CD1 (You must observe your duty to the court in the administration of
justice), CD2 (You must act in the best interests of each client) and CD6 (You must keep the affairs of each client
confidential) and what do they provide?

ANSWER

Rules rC3.5, rC4 and rC5 (and related guidance) deal with the relationship between CD1 (You must observe your duty to
the court in the administration of justice) CD2 (You must act in the best interests of each client) and CD6 (You must keep
the affairs of each client confidential).

rC3 You owe a duty to the court to act with independence in the interests of justice. This duty overrides any inconsistent
obligations which you may have (other than obligations under the criminal law). It includes the following specific
obligations which apply whether you are acting as an advocate or are otherwise involved in the conduct of litigation in
whatever role (with the exception of Rule C3.1 below, which applies when acting as an advocate):

.1 you must not knowingly or recklessly mislead or attempt to mislead the court;

.2 you must not abuse your role as an advocate;

.3 you must take reasonable steps to avoid wasting the court‟s time;

.4 you must take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions;

.5 you must ensure that your ability to act independently is not compromised.

rC4 Your duty to act in the best interests of each client is subject to your duty to the court.

rC5 Your duty to the court does not require you to act in breach of your duty to keep the affairs of each client confidential.

Group 2 Your duty to not mislead the court

QUESTION 5

Where is the duty not to mislead the court to be found in the Handbook and what does it provide?

ANSWER

The duty not to mislead the court is covered by CD1 (you must observe your duty to the court in the administration of
justice) and is to be found in Rules rC3.1 (you must not knowingly or recklessly mislead or attempt to mislead the court)
and rC6 which further defines the duty not to mislead the court and specifies particular obligations:

rC6 Your duty not to mislead the court or to permit the court to be misled will include the following obligations:

.1 you must not:.a make submissions, representations or any other statement; or .b ask questions which suggest facts to
witnesseswhich you know, or are instructed, are untrue or misleading.

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.2 you must not call witnesses to give evidence or put affidavits or witness statements to the court which you know, or are
instructed, are untrue or misleading, unless you make clear to the court the true position as known by or instructed to you.

QUESTION 6

What would you do if during a case you discovered that you had inadvertently misled the court?

ANSWER

If you discovered during a case that you had inadvertently misled the court you must correct the position.

This is set out in Guidance gC4: Knowingly misleading the court includes inadvertently misleading the court if you later
realise that you have misled the court, and you fail to correct the position. Recklessness means being indifferent to the
truth, or not caring whether something is true or false. The duty continues to apply for the duration of the case.

QUESTION 7

What should you do if you have just discovered during a case that a new authority from the Court of Appeal (of which your
opponent and the judge are unaware) completely undermines the submissions you have been making for the last two
days?

ANSWER

If a new authority undermines your case and your opponent or the judge is unaware of it you must disclose it to your
opponent and to the court, even if this means your client will lose the case. Failure to do so and to continue with your
submissions would be to mislead the court.

rC3.4 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 [another Handbook misprint - it should say rC3.4] 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.”

QUESTION 8

Are you misleading the court if you represent a client at trial who has already told you he is guilty of the offence he is
charged with?

ANSWER

As to whether you are misleading the court if you represent a client at trial who has already told you he is guilty of the
offence he is charged with, this depends on how you conduct the trial.

Guidance gC9 and gC10 assists here:

gC9 Rule C3.5 [another Handbook misprint – I believe it should say rC3.4] makes it clear that your duty to act in the best
interests of your client is subject to your duty to the court. For example, if your client were to tell you that he had
committed the crime with which he was charged, in order to be able to ensure compliance with Rule C4 on the one hand
and Rule C3 and Rule C6 on the other:

.1 you would not be entitled to disclose that information to the court without your client’s consent; and

.2 you would not be misleading the court if, after your client had entered a plea of not guilty, you were to test in cross-
examination the reliability of the evidence of the prosecution witnesses and then address the jury to the effect that the
prosecution had not succeeded in making them sure of your client‟s guilt.

gC10 However, you would be misleading the court and would therefore be in breach of Rules C3 and C6 if you were to
set up a positive case inconsistent with the confession, as for example by:

.1 suggesting to prosecution witnesses, calling your client or your witnesses to show; or submitting to the jury, that your
client did not commit the crime; or

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.2 suggesting that someone else had done so; or .3 putting forward an alibi.

Group 3 Behaving Ethically: Honesty, Integrity & Independence

QUESTION 9

Can you put any question or assertion you like to a witness if you feel it might assist your case?

ANSWER

No you cannot put any question or assertion you like to a witness if you feel it might assist your case? This is because the
second of the Conduct Rules under rC3.2 provides that “you must not abuse your role as an advocate.” This is defined by
rC7 as follows:

rC7 - Where you are acting as an advocate, your duty not to abuse your role includes the following obligations:.1 - you
must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;

.2 - you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless
you have given that witness a chance to answer the allegation in cross-examination;

.3 - you must not make a serious allegation against any person, or suggest that a person is guilty of a crime with which
your client is charged unless:.a - you have reasonable grounds for the allegation; and.b - the allegation is relevant to your
client‟s case or the credibility of a witness; and

.c - where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary.

.4 - you must not put forward to the court a personal opinion of the facts or the law unless you are invited or required to do
so by the court or by law.

THE ABOVE IS OBVIOUSLY IMPORTANT FOR ADVOCACY

QUESTION 10

If a client insists on pursuing a legal argument on appeal that you do not consider has any merit, are you bound by your
client’s instructions to pursue it?

ANSWER

No, you should not pursue legal arguments that you do not consider have any merit. The second conduct rule (“Behaving
Ethically”) contains rC9 which provides:

rC9 Your duty to act with honesty and integrity under CD3 includes the following requirements:

.1 you must not knowingly or recklessly mislead or attempt to mislead anyone;

.2 you must not draft any statement of case, witness statement, affidavit or other document containing:

.a any statement of fact or contention which is not supported by your client or by your instructions;

.b any contention which you do not consider to be properly arguable;

.c any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material
which establishes an arguable case of fraud;

.d (in the case of a witness statement or affidavit) any statement of fact other than the evidence which you reasonably
believe the witness would give if the witness were giving evidence orally;

.3 you must not encourage a witness to give evidence which is misleading or untruthful;

.4 you must not rehearse, practise with or coach a witness in respect of their evidence;

.5 unless you have the permission of the representative for the opposing side or of the court, you must not communicate

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with any witness (including your client) about the case while the witness is giving evidence;

.6 you must not make, or offer to make, payments to any witness which are contingent on his evidence or on the outcome
of the case;

.7 you must only propose, or accept, fee arrangements which are legal. Also, all barristers are personally responsible for
their own conduct and professional work:

rC20 Where you are a BSB authorised individual, you are personally responsible for your own conduct and for your
professional work. You must use your own professional judgment in relation to those matters on which you are instructed
and be able to justify your decisions and actions. You must do this notwithstanding the views of your client, professional
client, employer or any other person.

QUESTION 11

Are you entitled to accept gifts of any kind from a professional or lay client?

ANSWER

In short, you can never accept money, other than your professional fee. You can accept other gifts of modest size.

Regarding gifts, you should always consider whether the circumstances and size of the gift would reasonably lead others
to think that your independence had been compromised. See gC 18 & 19:

gC18 The following may reasonably be seen as compromising your independence in breach of Rule C8 (whether or not
the circumstances are such that Rule C10 is also breached):

.1 offering, promising or giving:

.a any commission or referral fee (of whatever size) – note that these are in any case prohibited by Rule C10 and
associated guidance; or

.b a gift (apart from items of modest value),to any client, professional client or other intermediary; or

1. .2 lending money to any such client, professional client or other intermediary; or

2. .3 accepting any money (whether as a loan or otherwise) from any client,

professional client or other intermediary, unless it is a payment for your professional services or reimbursement of
expenses or of disbursements made on behalf of the client;

gC19 If you are offered a gift by a current, prospective or former client, professional client or other intermediary, you
should consider carefully whether the circumstances and size of the gift would reasonably lead others to think that your
independence had been compromised. If this would be the case, you should refuse to accept the gift.

QUESTION 12

I have been contacted by a journalist about my case – am I entitled to talk about it? (Note from Furqan: This answer is
consistent with the previous guidance notes, however, as minor changes have taken place, please have a look at
the new “media comment” guidance. Also, you may want to see MMU short notes on the topic.)

ANSWER

There is no prohibition on speaking to the media about a case you are involved in. However, you must exercise good
professional judgment in deciding whether you should do so.

gC22 - The former prohibition on practising barristers expressing a personal opinion in the media in relation to any future
or current proceedings in which they are briefed has been removed. Practising barristers must, nevertheless, ensure that
any comment they may 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. Further guidance is
available on the Bar Standards Board's website https://www.barstandardsboard.org.uk/code- guidance/media-comment-
guidance-april-2013/

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NB This document „Media Comment Guidance – April 2013‟ is also on the VLE and in students‟ printed Professional
Ethics bundle. The relevant parts are as follows:

“The purpose of this guidance is to clarify the remaining ethical obligations in relation to media comment and to suggest
some of the issues that the barrister should bear in mind whilst exercising professional judgment about whether and how
to comment. This will require an assessment of many factors, including the nature and type of proceedings, the stage they
have reached, the need to ensure that media comment does not prejudice the administration of justice and the nature of
the comment that is proposed to be made. More generally, barristers need to consider carefully whether commenting on
individual cases in which they have acted would be appropriate and whether the proposed comment would require any
individual client's consent. Ill-judged comments on an individual case may cause unintended harm to the interests of the
client. The rule change does not, of course, oblige the barrister to make comments. Indeed, many barristers will decline to
do so on the basis that they lack experience in speaking to the press and/or commenting in other media.

Ethical obligations

4. The ethical obligations that apply in relation to your professional practice generally continue to apply in relation to media
comment. In particular, barristers should be aware of the following:

a. Client's best interests: Core Duty 2 and Rules C15.1-.2 of the BSB Handbook require a barrister to promote fearlessly
and by all proper and lawful means the lay client's best interests and to do so without regard to his or her own interests.

b. Independence: Core Duties 3 and 4 provide that you must not permit your absolute independence, integrity and
freedom from external pressures to be compromised.

c. Trust and confidence: Core Duty 5 provides that you must not behave in a way which is likely to diminish the trust and
confidence which the public places in you or the profession.

d. Confidentiality: Core Duty 6 and Rule C15.5 require you to preserve the confidentiality of your lay client's affairs and
you must not undermine this unless permitted to do so by law or with the express consent of the lay client.

Legal issues

5. Media comment which causes a substantial risk of serious prejudice of current or pending proceedings may lead to
proceedings for contempt of court.

6. Barristers should also be aware of the risk of personal liability for claims in defamation or malicious falsehood against
the barrister, or even against the client (if the barrister is speaking on the client's behalf). Barristers' professional indemnity
insurance does not usually cover liability for such claims.”

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QUESTION 1

What are the principal Core Duties directly associated with your duty to your client, what are the Outcomes associated
with your duty to your client and how is this duty defined in the Handbook?

ANSWERCORE DUTIES The principal Core Duties directly associated with your duty to

your client are

CD2 – You must act in the best interests of each client;

CD6 – You must keep the affairs of each client confidential;

CD7 – You must provide a competent standard of work and service to each client.

OUTCOMES - The Outcomes associated with your duty to your client are set out (on p.33 of the Handbook) at the start of
the section entitled „You and Your Client‟ which is the third of the Conduct Rules following „You and the Court‟ and
„Behaving Ethically‟ which were covered in SGS1.

The „You and Your Client‟ outcomes are:

oC10 Clients receive a competent standard of work and service.

oC11 Clients‟ best interests are protected and promoted by those acting for them.

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oC12 BSB authorised persons do not accept instructions from clients where there is a conflict between their own interests
and the clients‟ or where there is a conflict between one or more clients except when permitted in this Handbook.

oC13 Clients know what to expect and understand the advice they are given. oC14 Care is given to ensure that the
interests of vulnerable clients are taken

into account and their needs are met.

oC15 Clients have confidence in those who are instructed to act on their behalf.

oC16 Instructions are not accepted, refused, or returned in circumstances which adversely affect the administration of
justice, access to justice or (so far as compatible with these) the best interests of the client.

oC17 Clients and BSB authorised persons and authorised (non-BSB) individuals and BSB regulated managers are clear
about the circumstances in which instructions may not be accepted or may or must be returned.

oC18 Clients are adequately informed as to the terms on which work is to be done.

oC19 Clients understand how to bring a complaint and complaints are dealt with promptly, fairly, openly and effectively.

oC20 Clients understand who is responsible for work done for them DEFINITION – Your duty to your client is defined in
rC15:

rC15 Your duty to act in the best interests of each client (CD2), to provide a competent standard of work and service to
each client (CD7) and to keep the affairs of each client confidential (CD6) includes the following obligations:

.1 you must promote fearlessly and by all proper and lawful means the client‟s best interests;

.2 you must do so without regard to your own interests or to any consequences to you (which may include, for the
avoidance of doubt, you being required to take reasonable steps to mitigate the effects of any breach of this Handbook);

.3 you must do so without regard to the consequences to any other person (whether to your professional client, employer
or any other person);

.4 you must not permit your professional client, employer or any other person to limit your discretion as to how the
interests of the client can best be served; and

.5 you must protect the confidentiality of each client‟s affairs, except for such disclosures as are required or permitted by
law or to which your client gives informed consent.

rC16 Your duty to act in the best interests of each client (CD2) is subject to your duty to the court (CD1) and to your
obligations to act with honesty, and integrity (CD3) and to maintain your independence (CD4).

QUESTION 2 (BTT SGS 6)

You are a personal injury barrister. You have been instructed by Johnson & Co, a large firm of solicitors, to represent
Lionel Jacobs who suffered serious injuries in an industrial accident. Liability is admitted and the trial on quantum of
damages starts in less than a week’s time. On looking through the papers you realise that your solicitors have failed to
include a claim for certain future losses that could make a difference of £50,000 to any damages award. You raise this
with the junior partner who has conduct of the case and tell her that to amend the claim will definitely necessitate an
adjournment and a likelihood of wasted costs to be paid by Johnson & Co; she tells you that she forgot to include this part
of the claim, but asks you to stay quiet about it because the firm is in the process of restructuring and if the senior partners
find out she will almost certainly lose her job. She goes on to say that the client is likely to be awarded around £500,000
so, in the scheme of things, this makes little difference. What do you do? Provide full reasons for your answer.

ANSWER

You should:

3.  Tell the partner that you cannot keep quiet about it.

4.  The claim must be amended because this is in the client‟s best interests

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5.  Your duty is to your client, not to your professional client.

6.  The consequences for the partner are irrelevant.

7.  You must not let the partner limit your discretion as to how the best interests of your client can be
served.

8.  Your solicitor has been negligent; if your solicitor refuses to acknowledge this to the client and
make the application to amend you should inform your client to seek alternative solicitors who can make the
application on your behalf.

9.  Given that you have been asked to keep quiet you may feel that you should advise your client to
seek alternative solicitors in any event.

 A refusal by your solicitors to come clean and make the application means that you are being instructed to act in breach
of the code; in that case you should withdraw from the case and return your instructions, explaining to your professional
client why you have done so.

oC10 Clients receive a competent standard of work and service.oC11 Clients‟ best interests are protected and promoted
by those acting for

them.oC13 Clients know what to expect and understand the advice they are given.

oC14 Care is given to ensure that the interests of vulnerable clients are taken into account and their needs are met.

oC15 Clients have confidence in those who are instructed to act on their behalf.

oC16 Instructions are not accepted, refused, or returned in circumstances which adversely affect the administration of
justice, access to justice or (so far as compatible with these) the best interests of the client.

rC15 Your duty to act in the best interests of each client (CD2), to provide a competent standard of work and service to
each client (CD7) and to keep the affairs of each client confidential (CD6) includes the following obligations:.1 you must
promote fearlessly and by all proper and lawful means the client‟s best interests;

.2 you must do so without regard to your own interests or to any consequences to you (which may include, for the
avoidance of doubt, you being required to take reasonable steps to mitigate the effects of any breach of this Handbook);.3
you must do so without regard to the consequences to any other person (whether to your professional client, employer or
any other person);.4 you must not permit your professional client, employer or any other person to limit your discretion as
to how the interests of the client can best be served;

gC36 Your duty is to your client, not to your professional client or other intermediary (if any).

rC17 Your duty to act in the best interests of each client (CD2) includes a duty to consider whether the client‟s best
interests are served by different legal representation, and if so, to advise the client to that effect.

gC49 Your duty to comply with Rule C17 may require you to advise your client that in their best interests they should be
represented by:

.1 a different advocate or legal representative, whether more senior or more junior than you, or with different experience
from yours;

.2 more than one advocate or legal representative;.3 fewer advocates or legal representatives than have been instructed;
or

.4 in the case where you are acting through a professional client, different solicitors.

gC51 CD2 and Rules C15.5 and C17 require you, subject to Rule C16, to put your client‟s interests ahead of your own
and those of any other person. If you consider that your professional client, another solicitor or intermediary, another
barrister, or any other person acting on behalf of your client has been negligent, you should ensure that your client is
advised of this.

Returning Your Instructions

rC25 Where you have accepted instructions to act but one or more of the circumstances set out in Rules C21.1 to C21.10

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above then arises, you must cease to act and return your instructions promptly.

rC21.6 You must not accept instructions to act in a particular matter if your instructions require you to act other than in
accordance with law or with the provisions of this Handbook.

rC27 Notwithstanding the provisions of Rules C25 and C26, you must not:

.1 cease to act or return instructions without either:

.a obtaining your client‟s consent; or

.b clearly explaining to your client or your professional client the reasons for doing so; or

.2 return instructions to another person without the consent of your client or your professional client.

QUESTION 3 (BTT sgs 6)

You are a barrister at Gladbury Chambers. During a trial your opponent brings to your attention a Supreme Court authority
which undermines his case. The law is now so clear that the opposing side withdraw their defence and judgment is
granted for your client. Rather than being elated about the success, your client complains to you that this authority relates
to a judgment given one month before the trial, you should have known about it and if you had there would have been no
need to go to trial at all. You respond that you are fully up-to-date with all your Continuing Professional Development
hours and, therefore, you have behaved appropriately. Who is correct here, you or your client? Provide full reasons for
your answer.

ANSWER

Your client is correct. You are under a duty to keep your knowledge up-to- date; the fact that you have completed the
minimum CPD hours required of you is not sufficient in itself to ensure you have complied with your duty to provide a
competent standard of work and service to each client.

oC10 Clients receive a competent standard of work and service.CD7 - You must provide a competent standard of work
and service to each client.

See also rC15 above.

gC39 In order to be able to provide a competent standard of work, you should keep your professional knowledge and
skills up to date, regularly take part in professional development and educational activities that maintain and further
develop your competence and performance and, where you are a BSB authorised body or a manager of such body, you
should take reasonable steps to ensure that managers and employees within your organisation undertake such training.
Merely complying with the minimum Continuing Professional Development requirements may not be sufficient to comply
with Rule C15.

Remember rC3.4 – you must take reasonable steps to ensure that the court has before it all relevant decisions and
legislative provisions.

QUESTION 4 (btt sgs 6)

You represent the defendant in his Crown Court proceedings on an allegation of theft from employer. In conference with
the client shortly before the trial you advise him that he is likely to get a custodial sentence in the event of conviction. The
client said he was thinking of “legging it” before the trial. What should you advise him?

On the day of trial the defendant does not attend. Should you inform the court that your client had thought about
absconding?

ANSWER

(a) The client said he was thinking of “legging it” before the trial. What should you advise him? You should advise him to
attend court. To do otherwise would be in breach of your Core Duties as follows: CD1 to the court in the administration of
justice; CD3 to act with honesty and integrity; CD5 not to behave in a way which is likely to diminish the trust and
confidence which the public places in you or in the profession.

(b) Should you inform the court that your client had thought about absconding? No. You have a duty of confidentiality to
each client under CD6. However, you must not mislead the court by, for example, suggesting that you have no idea where

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 he has failed to attend.

oC1 - The court is able to rely on information provided to it by

those conducting litigation and by advocates who appear before it. oC2 - The proper administration of justice is served.

oC3 - The interests of clients are protected to the extent compatible with outcomes C1 and C2 and the Core Duties.

oC4 - Both those who appear before the court and clients understand clearly the extent of the duties owed to the court by advocates and those condu
will be overridden by the duty owed to the court.

oC5 - The public has confidence in the administration of justice and in those who serve it.

rC5 - Your duty to the court does not require you to act in breach of your duty to keep the affairs of each client
confidential.

gC8 - As set out in Rule C4, your duty to the court does 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. However, Rule C6 requires you not knowingly to mislead the court or to permit the court to be misled. There may be
situations where you have obligations under both these rules.

QUESTION 5

You are appearing at Gladbury Magistrates’ Court. Your client, Stephen Clarke, was convicted at a trial on an earlier date
of an offence of domestic burglary and sentencing was adjourned until today. When you arrive at court you speak to the
prosecutor who tells you that Mr Clarke has no previous convictions. When you speak to Mr Clarke in conference he tells
you that in fact he has a previous conviction in the last six months for domestic burglary. In court the Prosecutor sets out
the facts of the offence and tells the Court that Mr Clarke has no previous convictions. What should you do? Provide full
reasons for your answer.

Would your answer be any different if Mr Clarke had two previous convictions for domestic burglary, meaning that the
mandatory sentencing provisions apply under s.111 of the Powers of Criminal Courts (Sentencing) Act 2000 and he
should receive a minimum term of 3 years’ imprisonment?

ANSWER First Scenario

8.  You should not reveal the conviction without consent from your client to do so;

9.  If consent is refused you can still represent your client;

10.  But you must not mislead the court by expressly or implied adopting the position outlined
by the prosecution or by advancing any contention which is false, e.g. suggesting the defendant has no
previous convictions or has not previously been in custody (if this is not the case);

11.  You should explain to your client the limitations you are placed under in this situation;

12.  You should also explain that if you are asked a direct question by the court you cannot
give an untruthful answer;

13.  It would also be helpful to tell your client that if the error is discovered the sentence
could be revisited; you could also tell your client that should he disclose the conviction he is likely to get credit
from the judge from doing so and this is a matter which in itself could be used in mitigation.

14.  If your client insists that you do anything that would mislead the court you must
withdraw, explaining to your client (not the court) why you are doing so. In the second scenario (Mandatory
Sentence):

15.  Failing to disclose the convictions would result in the passing of an unlawful sentence;

16.  You cannot disclose the convictions to the prosecution/court without the client‟s
consent;

17.  If he does not consent you cannot act and must withdraw, explaining why you are doing

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 so. CD6 requires you to keep the affairs of each client confidential, subject to some exceptions which are set
out at rC15, namely except for such disclosures as are required or permitted by law or which your client gives
informed consent. It is important to remember that your duty to the court is an overriding duty so you cannot do
anything which would mislead the court.

Guidance on this situation is contained at gC12 -

gC12 For example, if your client tells you that he has previous convictions of which the prosecution is not aware, you may
not disclose this without his consent. However, in a case where mandatory sentences apply, the non- disclosure of the
previous convictions will result in the court failing to pass the sentence that is required by law. In that situation, you must
advise your client that if consent is refused to your revealing the information you will have to cease to act. In situations
where mandatory sentences do not apply, and your client does not agree to disclose the previous convictions, you can
continue to represent your client but in doing so must not say anything that misleads the court. This will constrain what
you can say in mitigation. For example, you could not advance a positive case of previous good character knowing that
there are undisclosed prior convictions. Moreover, if the court asks you a direct question you must not give an untruthful
answer and therefore you would have to withdraw if, on your being asked such a question, your client still refuses to allow
you to answer the question truthfully. You should explain this to your client.

QUESTION 6

You are friends with a researcher for a television company. She knows that you recently defended a man charged with
rape. The man was acquitted after a 4 day trial. Her company is interested in making a documentary about rape trials, and
she has asked a) for copies of the case papers; b) for your opinion on the case. Can you assist? How will you respond to
these requests?

ANSWER

You cannot give copies of the case papers unless you inform your client of why you wish to disclose the papers and your
client agrees (informed consent) and even then you will have to redact them for legal reasons because the anonymity of
complainants in rape cases is protected by statute.

You can give your opinion on a case, but you should use good professional judgment. One matter you must always
consider before commenting on a case is confidentiality. See „Media Comment Guidance – April 2013‟ – this is a
guidance document published by the BSB at https://www.barstandardsboard.org.uk/regulatory-requirements/bsb-
handbook/code-guidance/ (This guidance is within your printed bundles at p.340 and is also on the VLE).

CD6 You must keep the affairs of each client confidential.

rC15 Your duty to act in the best interests of each client (CD2), to provide a competent standard of work and service to
each client (CD7) and to keep the affairs of each client confidential (CD6) includes the following obligations: ... .5 you
must protect the confidentiality of each client‟s affairs, except for such disclosures as are required or permitted by law or
to which your client gives informed consent.

gC42 The duty of confidentiality (CD6) is central to the administration of justice. Clients who put their confidence in their
legal advisers must be able to do so in the knowledge that the information they give, or which is given on their behalf, will
stay confidential. In normal circumstances, this information will be privileged and not disclosed to a court. CD6, rC4 and
Guidance C8 and C11 to C13 provide further information.

NB – Other factors: Anonymity of Complainants in Sexual Offences. Disclosure of the papers would (arguably) result in
you being in breach of the undertaking not to disclose this information (required by the Sexual Offences (Protected
Material) Act 1997). If details of the case were broadcast, your friend would (arguably) be committing an offence under
section 8(2)(a) of the Act, which carries a term of imprisonment upon conviction – although she might have a defence
under Section 8(5) of the Act

QUESTION 7

You are a family barrister conducting financial proceedings relating to a divorce. You have downloaded your case papers
onto your laptop and you have been sending and receiving emails about the case on your mobile phone. What obligations
are you under to preserve the confidentiality of your client’s affairs?

ANSWER

.  You are under a duty to maintain the confidentiality of clients‟ affairs;

.  Losing a portable device containing unprotected confidential material could place you in breach of

10
 your duty of confidentiality;

.  Barristers are data controllers under the Data Protection Act 1998 and must comply with the rules
on data handling – see useful information

on the Information Commissioner‟s Office (ICO) website

http://ico.org.uk/for_organisations/data_protection/security_measures

.  ICO can fine up to £500,000 for serious breaches;

.  Portable devices such as laptops and mobile phones should be used to store information needed
for immediate business purposes only;

.  Electronic information should be at least password protected and preferably encrypted;

.  Great case should be taken in looking after the devices themselves to ensure they are not lost or
stolen;

.  Additional safeguards will need to be put in place for particularly sensitive information. CD6 You
must keep the affairs of each client confidential [CD6]. rC5 Your duty to the court does not require you to act in
breach of your duty to keep the affairs of each client confidential. rC15 Your duty to act in the best interests of
each client (CD2), to provide a competent standard of work and service to each client (CD7) and to keep the
affairs of each client confidential (CD6) includes the following obligations: .5 you must protect the confidentiality
of each client‟s affairs, except for such disclosures as are required or permitted by law or to which your client
gives informed consent. R 34 SECTION C: THE CONDUCT RULES PART 2 C3: You and your client.5 you
must protect the confidentiality of each client‟s affairs, except for such disclosures as are required or permitted
by law or to which your client gives informed consent. rC89.5 Taking into account the provisions of Rule C90,
you must take reasonable steps to ensure that proper arrangements are made in chambers for the
management of conflicts of interest and for ensuring the confidentiality of clients‟ affairs. rC90 For the purposes
of Rule C89 the steps which it is reasonable for you to take will depend on all the circumstances, which include,
but are not limited to: .1 the arrangements in place in your chambers for the management of chambers;.2 any
role which you play in those arrangements; and.3 the independence of individual members of chambers from
one another. gC134 Your duty under Rule C89.5 to have proper arrangements in place for ensuring the
confidentiality of each client‟s affairs includes:.1 putting in place and enforcing adequate procedures for the
purpose of protecting confidential information; .2 complying with data protection obligations imposed by law; of
their work for you complies with these obligations; and.4 taking into account any further guidance on
confidentiality which is available on the Bar Standards Board‟s website and which can be accessed here
https://www.barstandardsboard.org.uk/code-guidance/confidentiality- guidance/

QUESTION 8

You are a junior barrister instructed in a commercial dispute. The hearing is fixed to take place in two weeks’ time.
Unfortunately, your trial next week has been adjourned by the judge for a week (through no fault of yours and despite your
representations) meaning that you now have two similar cases starting on the same date, both of which are commercial
cases that are due to last for a week. What should you do?

ANSWER ; When you have a clash of listings:

You should make all reasonable efforts to prevent a clash of dates (which involves communicating effectively with the
court and managing and diarising cases effectively;

where it is impossible to prevent a clash of hearing dates, you must exercise your professional judgment in deciding which
hearing is the most important to attend;

Some hearings may have to take precedence over othersWhere an order of precedence is not clear, you should consider
your duty to act in the best interests of each of your clients, in particular

which will be most prejudiced by alternative representation being arranged at short notice;

.  You should take particular care to consider the needs of vulnerable clients and the impact of your
decision on access to justice;

.  You should consider all the relevant circumstances of the case including how long you have been
instructed for on each, the complexity and difficulty of the cases, the amount of work you have done and

11
 relevant access to justice considerations and the likely impact on your client;

.  You should at all times take reasonable steps to keep parties informed of any clash of hearing
dates (in particular by informing clients as soon as possible);

.  When you are unable to attend you should take all reasonable steps to assist clients to find
alternative representation. See also: rC18 Your duty to provide a competent standard of work and service to
each client (CD7) includes a duty to inform your professional client, or your client if instructed by a client, as far
as reasonably possible in sufficient time to enable appropriate steps to be taken to protect the client‟s interests,
if: .1 it becomes apparent to you that you will not be able to carry out the instructions within the time requested,
or within a reasonable time after receipt of instructions; or .2 there is an appreciable risk that you may not be
able to undertake the instructions gC52 For further information about what you should do in the event that you
have a clash of listings, please refer to our guidance which can be accessed on the Bar Standards Board‟s
website at https://www.barstandardsboard.org.uk/regulatory-requirements/bsb- handbook/code-guidance/
[p.345 of your bundle.]

QUESTION 9

You have been instructed to act for the Morris brothers who are jointly charged with assault with a weapon. Please
consider the following scenarios:

. (a) You speak to John Morris in conference first. He tells you that he is blaming his brother Daniel for starting the fight
and claims that he got involved only to break up the fight. What should you do?

. (b) You speak to Daniel first, who in conference asserted his innocence, and did not implicate his brother John at all.
You then speak to John who tells you that his brother Daniel started the fight and claims he got involved only to
break up the fight. What should you do?

ANSWER

Answer (a):

.  There is a potential conflict of interests between the two clients and you cannot properly continue
to act of both of them.

.  You will have to consider whether it is appropriate to continue to act for either of them.

.  It is likely you can continue to act for John. This is because you have not spoken to Daniel yet and
therefore there is no risk of breach of confidence.

.  You should not take any instructions from Daniel;

.  You must advise Daniel that you can no longer represent him and that he should seek alternative
representation by another barrister. You should also advise that he should seek representation from a new
solicitor because the solicitor will share the same conflict of interest as you.

.  You should inform your solicitor that you can no longer act for both clients and that you have
advised Daniel to seek separate representation. Answer (b):

.  There is a definite conflict of interest between the two clients and you cannot continue to act for
either of them;

.  This is because you would not be able to conduct the case for one client without breaching the
confidence of the other;

.  Even if the clients consented to you continuing you could not act in the best interests of each client
as required by CD2;

.  You must advise both of them that you can no longer represent them and that they should each be
represented by another barrister;

.  You should also advise that they should each seek separate solicitor representation because the

12
 solicitor will share the same problem as you;

.  You should inform your solicitor that you can no longer act for either client and that you have
advised them to seek separate representation. rC25 Where you have accepted instructions to act but one or
more of the circumstances set out in Rules C21.1 to C21.10 above then arises, you must cease to act and
return your instructions promptly. rC21 You must not accept instructions to act in a particular matter if:.1 due to
any existing or previous instructions you are not able to fulfill your obligation to act in the best interests of the
prospective client; or .2 there is a conflict of interest between your own personal interests and the interests of
the prospective client in respect of the particular matter; or .3 there is a conflict of interest between the
prospective client and one or more of your former or existing clients in respect of the particular matter unless all
of the clients who have an interest in the particular matter give their informed consent to your acting in such
circumstances; or .4 there is a real risk that information confidential to another former or existing client, or any
other person to whom you owe duties of confidence, may be relevant to the matter, such that if, obliged to
maintain confidentiality, you could not act in the best interests of the prospective client, and the former or
existing client or person to whom you owe that duty does not give informed consent to disclosure of that
confidential information;

rC27 Notwithstanding the provisions of Rules C25 and C26, you must not:

.1 cease to act or return instructions without either:

.a obtaining your client‟s consent; or

.b clearly explaining to your client or your professional client the reasons for doing so; or

.2 return instructions to another person without the consent of your client or your professional client.

oC12 BSB authorised persons do not accept instructions from clients where there is a conflict between their own interests
and the clients‟ or where there is a conflict between one or more clients except when permitted in this Handbook.

QUESTION 10

You represent Peter Ball, who is seeking a contact order to allow him to see his son, who lives with his ex-wife. His ex-
wife is resisting the application for the order. You are at the County Court where you are to make your application for the
order. Mr Ball, his ex-wife and her solicitor are there. Emotions are running high. Mr Ball is getting angry and upset, and
feels that you are not doing your best for him. Before going into court to make the application Mr Ball tells you that if you
don’t obtain the order he is going to “punch you in the head”. You take his threat seriously. What are you going to do?

ANSWER

There are two issues that arise here because Mr Ball has both called your professional conduct into question (by saying
you are not doing your best for him) and he has threatened you.

 You are therefore entitled to cease to act and return your instructions where your professional conduct is being called
into question (rC26.1) and where “there is some other substantial reason for doing so” (rC26.8).

.  Alternatively you could also explain to the client that given his concerns/behaviour he might wish to
seek alternative representation – you could then withdraw with the client‟s consent under rC26.3.

.  Students should note that rC26 deals with the provisions concerning when you MAY withdraw, as
opposed to rC25 (and rC21) that deal with when you MUST withdraw. rC26 You may cease to act on a matter
on which you are instructed and return your instructions if: .1 your professional conduct is being called into
question; or .2 the client consents; or.3 you are a self-employed barrister and: .a despite all reasonable efforts
to prevent it, a hearing becomes fixed for a date on which you have already entered in your professional diary
that you will not be available; or .b illness, injury, pregnancy, childbirth, a bereavement or a similar matter
makes you unable reasonably to perform the services required in the instructions; or .c you are unavoidably
required to attend on jury service; .4 you are a BSB authorised body and the only appropriate authorised
individual(s) are unable to continue acting on the particular matter due to one or more of the grounds referred to
at Rules C26.3.a to C26.3.c above occurring; .5 you do not receive payment when due in accordance with
terms agreed, subject to Rule C26.7 (if you are conducting litigation) and in any other case subject to your
giving reasonable notice requiring the non-payment to be remedied and making it clear to the client in that
notice that failure to remedy the non-payment may result in you ceasing to act and returning your instructions in
respect of the particular matter; or .6 you become aware of confidential or privileged information or documents
of another person. which relate to the matter on which you are instructed; or .7 if you are conducting litigation,
and your client does not consent to your ceasing to act, your application to come off the record has been
granted; or .8 there is some other substantial reason for doing so (subject to Rules C27 to C29 below).

13
gC83 In deciding whether to 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.

rC27 Notwithstanding the provisions of Rules C25 and C26, you must not:

.1 cease to act or return instructions without either:

.a obtaining your client‟s consent; or

.b clearly explaining to your client or your professional client the reasons for doing so; or

.2 return instructions to another person without the consent of your client or your professional client.

QUESTION 11

You are an Asian barrister, instructed by a firm of solicitors to represent a white defendant accused of murdering an Asian
teenager. The prosecution case is that the defendant is a member of the neo-Nazi organisation that killed the teenager in
a racist attack. The defendant freely admits to you that he is a member of the neo-Nazi organisation, that he is racist and
that he killed the teenager. However, he claims that he was acting in self-defence when attacked by a gang of Asian
youths. Both the defendant and your Instructing Solicitors are keen that you represent the defendant at his trial. Are you
obliged to represent the defendant?

NB The question assumes that the barrister is an experienced criminal practitioner who is competent to conduct the case
and that he has no other professional commitments that would prevent him from preparing the case or appearing for the
defendant at the trial. It also assumes that a proper fee for the case has been offered.

ANSWER

Yes you are obliged to represent the defendant both because you are not entitled to discriminate in the broader sense
against this defendant and because you are bound to accept it under the cab-rank rule.

First, there is a „Requirement not to discriminate‟ under rC28.rC28 - You must not withhold your services or permit your
services to be withheld:

.1 on the ground that the nature of the case is objectionable to you or to any section of the public;

.2 on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to you or to any section of
the public;

.3 on any ground relating to the source of any financial support which may properly be given to the prospective client for
the proceedings in question.

gC88 refers to the term „discriminate‟ in this rule as used in its broader sense. Secondly, the cab-rank rule provides as
follows:rC29 If you receive instructions from a professional client, and you are:.1 a self-employed barrister instructed by a
professional client; or

.2 an authorised individual working within a BSB authorised body; or

.3 a BSB authorised body and the instructions seek the services of a named authorised individual working for you,

and the instructions are appropriate taking into account the experience, seniority and/or field of practice of yourself or (as
appropriate) of the named authorised individual you must, subject to Rule C30 below, accept the instructions addressed
specifically to you, irrespective of:

.a the identity of the client;.b the nature of the case to which the instructions relate;.c whether the client is paying privately
or is publicly funded; and.d any belief or opinion which you may have formed as to the character, reputation, cause,
conduct, guilt or innocence of the client.

rC30 The cab rank Rule C29 does not apply if:

.1 you are required to refuse to accept the instructions pursuant to Rule C21; or.2 accepting the instructions would require
you or the named authorised individual to do something other than in the course of their ordinary working time or to cancel
a commitment already in their diary; or

14
.3 the potential liability for professional negligence in respect of the particular matter could exceed the level of professional
indemnity insurance which is reasonably available and likely to be available in the market for you to accept; or

.4 you are a Queen‟s Counsel, and the acceptance of the instructions would require you to act without a junior in
circumstances where you reasonably consider that the interests of the client require that a junior should also be
instructed; or

.5 accepting the instructions would require you to do any foreign work; or

.6 accepting the instructions would require you to act for a foreign lawyer (other than a European lawyer, a lawyer from a
country that is a member of EFTA, a solicitor or barrister of Northern Ireland or a solicitor or advocate under the law of
Scotland); or

.7 the professional client:.a is not accepting liability for your fees; or.b is named on the List of Defaulting Solicitors; or.c is
instructing you as a lay client and not in their capacity as a professional client; or.8 you have not been offered a proper fee
for your services (except that you shall not be entitled to refuse to accept instructions on this ground if you have not made
or responded to any fee proposal within a reasonable time after receiving the instructions); or.9 except where you are to
be paid directly by (i) the Legal Aid Agency as part of the Community Legal Service or the Criminal Defence Service or (ii)
the Crown Prosecution Service:.a your fees have not been agreed (except that you shall not be entitled to refuse to
accept instructions on this ground if you have not taken reasonable steps to agree fees within a reasonable time after
receiving the instructions); .b having required your fees to be paid before you accept the instructions, those fees have not
.c accepting the instructions would require you to act other than on (A) the Standard Contractual Terms for the Supply of
Legal Services by Barristers to Authorised Persons 2012 as published on the Bar Council‟s website; or (B) if you publish
standard terms of work, on those standard terms of work.

QUESTION 12

You are instructed to advise a client in a straightforward contractual dispute. The fee agreed is £200 + 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 are extremely pleased with what she has done and, save for
making a few stylistic changes, you sign it and send it off with a fee note for £1,000 + VAT. Are you entitled to do this?
Explain your answer.

ANSWER

No, you are not entitled to do this because to do so is likely to be regarded as in breach of rC19.2 and also your duty to
act with honesty and integrity under CD3.

Not misleading clients and potential clients

rC19 If you supply, or offer to supply, legal services, you must not mislead, or cause or permit to be misled, any person to
whom you supply, or offer to supply, legal services about:

.1 the nature and scope of the legal services which you are offering or agreeing to supply;.2 the terms on which the legal
services will be supplied, who will carry out the work and the basis of charging;.3 who is legally responsible for the
provision of the services;.4 whether you are entitled to supply those services and the extent to which you are regulated
when providing those services and by whom; or.5 the extent to which you are covered by insurance against claims for
professional negligence.

gC59 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. Moreover, such conduct may well breach your duty to
act with honesty and integrity (CD3).

________________________________________________________________________________
PROFESSIONAL ETHICS SGS 3: YOU AND YOUR REGULATOR, YOU AND YOUR PRACTICE, EXTERNAL
GUIDANCE & OTHER DOCUMENTS, PARTS 2 D, 3 & 4.

SUGGESTED ANSWERS

QUESTION 1

You are a self-employed barrister. You are late for court one morning and are pulled over for speeding. You are given a
fixed penalty notice which you promptly pay. Are you under a duty in these circumstances to report yourself to the Bar
Standards Board?

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ANSWER

No. You must report yourself promptly to the Bar Council if you are charged with an indictable offence (i.e. an offence
which is either indictable only or either-way) or you are convicted of any criminal offence other than a minor criminal
offence. A minor criminal offence is an offence committed in the UK which is a fixed penalty offence under the Road
Traffic Offenders Act 1988 (or another offence committed in the UK or abroad which is substantially similar to a fixed-
penalty offence) or an offence whose main ingredient is unlawful parking.

rC65 You must report promptly to the Bar Standards Board if:

.1 you are charged with an indictable offence; in the jurisdiction of England and Wales or with a criminal offence of
comparable seriousness in any other jurisdiction;

.2 you are convicted of, or accept a caution, for any criminal offence, in any jurisdiction, other than a minor criminal
offence.

Definition (from Part 6 of the Handbook): Minor criminal offences include:

.1 an offence committed in the United Kingdom which is a fixed-penalty offence under the Road Traffic Offenders Act
1988; or

.2 an offence committed in the United Kingdom or abroad which is dealt with by a procedure substantially similar to that
for such a fixed-penalty offence; or

.3 an offence whose main ingredient is the unlawful parking of a motor vehicle.

QUESTION 2

When you attend court to conduct a contact case in family proceedings you are unable to find your opponent. Eventually
he arrives after the hearing was due to start, but you have already secured some time to discuss reaching a compromise.
Your opponent tells you that he is unwilling to discuss the case with you. It is obvious to you that he is drunk, due to the
smell of alcohol on his breath, his slurred speech, his manner and the fact that he is unable to walk in a straight line. He is
clearly incapable of conducting the hearing. You try to talk to him about this but he tells you he is in no mood to talk. He
then leaves court, asking you to tell the judge that he is ill. Are you under a duty to report him to the BSB? Explain your
answer.

ANSWER

Yes you are under a duty to report him to the BSB because being drunk in court amounts to „serious misconduct‟ and
under rC66 you must report to the BSB if you have reasonable grounds to believe that there has been serious misconduct
by a barrister.

See „Guidance on Reporting Serious Misconduct of Others‟

https://www.barstandardsboard.org.uk/regulatory-requirements/bsb- handbook/code-guidance/ (in printed materials and

also on the VLE)

rC66 Subject to your duty to keep the affairs of each client confidential and subject also to Rules C67 and C68, you must
report to the Bar Standards Board if you have reasonable grounds to believe that there has been serious misconduct by a
barrister or a registered European lawyer, a BSB authorised body, a BSB regulated manager or an authorised (non-BSB)
individual who is working as a manager or an employee of a BSB authorised body.

rC67 You must never make, or threaten to make, a report under Rule C66 without a genuine and reasonably held belief
that Rule C66 applies.

rC68 You are not under a duty to report serious misconduct by others if:

.1 you become aware of the facts giving rise to the belief that there has serious misconduct from matters that 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; or

.2 you are aware that the relevant person that committed the serious misconduct has already reported the serious
misconduct to the Bar Standards Board; or.3 the events which led to you becoming aware of that other person‟s serious
misconduct are subject to their legal professional privilege; or.4 you become aware of such serious misconduct as a result
of your work on a Bar Council advice line.rC69 You must not victimise anyone for making in good faith a report under Rule

16
C66.

See also gC95 to 101gC96 Serious misconduct includes, without being limited to:

.1 dishonesty (CD3);.2 assault or harassment (CD3 and/or CD5 and/or CD8);.3 seeking to gain access without consent to
instructions or other confidential information relating to the opposing party‟s case (CD3 and/or CD5); or.4 seeking to gain
access without consent to confidential information relating to another member of chambers, member of staff or pupil (CD3
and/or CD5);

.5 encouraging a witness to give evidence which is untruthful or misleading (CD1 and/or CD3);.6 knowingly or recklessly
misleading, or attempting to mislead, the court or an opponent (CD1 and/or CD3); or

.7 being drunk or under the influence of drugs in court (CD2 and/or CD7); or .8 failure by a barrister to report promptly to
the Bar Standards Board pursuant to rC66 above;.9 a breach by a barrister of rC70 below;

.10 conduct that poses a serious risk to the public.

QUESTION 3

You are a new tenant at Gladbury Chambers. You have become increasingly concerned by what you consider to be the
poor administration in chambers. The clerks do not seem to have a good grasp of the computerised diary system, it is
difficult to locate records of fee notes and other correspondence with professional clients and despite discussing this with
various members of chambers nobody seems to want to accept responsibility. What duties are you under regarding the
administration of chambers?

ANSWER

 You are under a duty to ensure that your practice is efficiently and properly administered and that
proper records, including records relating to fees, are kept.

 The duties are contained in Conduct Rule 5 at rC87 to 89 and Guidance gC133 to 137.

 Barristers should also bear in mind that they are personally responsible for their own conduct and
for their own professional work (rC20, gC64) and you are responsible for the service of all those who represent you,
th
including your clerks or any other employees or agents (gC66). „You and Your Practice‟ is the 5 Conduct Rule.
oC24 provides: Your practice is run competently in a way that achieves compliance with the Core Duties and your
other obligations under this Handbook. Your employees, pupils and trainees understand, and do, what is required of
them in order that you meet your obligations under this Handbook.” C5.2 Administration and conduct of self-
employed practice rC87 You must take reasonable steps to ensure that: .1 your practice is efficiently and properly
administered having regard to the nature of your practice; and.2 proper records of your practice are kept. rC88 You
must:

.1 ensure that adequate records supporting the fees charged or claimed in a case are kept at least until the later of the
following:.a your fees have been paid; and.b any determination or assessment of costs in the case has been completed
and the time for lodging an appeal against that assessment or determination has expired without any such appeal being
lodged, or any such appeal has been finally determined;

.2 provide your client with such records or details of the work you have done as may reasonably be required for the
purposes of verifying your charges.

C5.3 Administration of chambersrC89 Taking into account the provisions of Rule C90, you must take

reasonable steps to ensure that:

.1 your chambers is administered competently and efficiently;.2 your chambers has appointed an individual or individuals
to liaise with the Bar Standards Board in respect of any regulatory requirements and has notified the Bar Standards
Board;.3 your chambers does not employ any person who has been disqualified from being employed by an authorised
person or a licensed body by another approved regulator pursuant to its or their powers as such and such disqualification
is continuing in force;.4 proper arrangements are made in your chambers for dealing with pupils and pupillage;.5 proper
arrangements are made in chambers for the management of conflicts of interest and for ensuring the confidentiality of
clients‟ affairs;.6 all non-authorised persons working in your chambers (irrespective of the identity of their employer):.a are
competent to carry out their duties;.b carry out their duties in a correct and efficient manner;.c are made clearly aware of
such provisions of this Handbook as may affect or be relevant to the performance of their duties;.d do nothing which
causes or substantially contributes to a breach of this Handbook by any BSB authorised individual or authorised (non-

17
BSB) individual within Chambers, and all complaints against them are dealt with in accordance with the complaints rules;
.7 all registered European lawyers and all foreign lawyers in your chambers comply with this Handbook insofar as
applicable to them;.8 appropriate risk management procedures are in place and are being complied with; and.9 there are
systems in place to check that:

.a all persons practising from your chambers whether they are members of the chambers or not have insurance in place in
accordance with Rules C75 to C77 above (other than any pupil who is covered under his pupil supervisor‟s insurance);
and.b every BSB authorised individual practising from your chambers has a current practising certificate and every other
authorised (non-BSB) individual providing reserved legal activities is currently authorised by their Approved Regulator.

rC90 For the purposes of Rule C89 the steps which it is reasonable for you to take will depend on all the circumstances,
which include, but are not limited to:

.1 the arrangements in place in your chambers for the management of chambers;.2 any role which you play in those
arrangements; and.3 the independence of individual members of chambers from one another.

QUESTION 4

When you first accept instructions from a solicitor to act on behalf of a client, what must you do?

ANSWER

 You must confirm in writing to the professional client acceptance of the instructions and the terms
and/or basis on which you will be acting, including the basis of charging (rC22).

 You must also ensure that your client is notified in writing when you are instructed, or if that is not
practicable, at the next appropriate opportunity, of their right to make a complaint (rC99). rC22 Where you first
accept instructions to act in a matter:.1 you must, subject to Rule C23, confirm in writing acceptance of the
instructions and the terms and/or basis on which you will be acting, including the basis of charging;.2 where your
instructions are from a professional client, the confirmation required by rC22.1 must be sent to the professional
client;.3 where your instructions are from a client, the confirmation required by rC22.1 must be sent to the client.
rC23 In the event that, following your acceptance of the instructions in accordance with Rule C22, the scope of the
instructions is varied by the relevant client (including where the client instructs you on additional aspects relating to
the same matter), you are not required to confirm again in writing acceptance of the instructions or the terms and/or
basis upon which you will be acting. In these circumstances, you will be deemed to have accepted the instructions
when you begin the work, on the same terms or basis as before, unless otherwise specified.

rC24 You must comply with the requirements set out in Rules C22 and C23 before doing the work unless that is not
reasonably practicable, in which case you should do so as soon as reasonably practicable.

Guidance

gC75 Compliance with the requirement in Rule C22 to set out the terms and/or basis upon which you will be acting may
be achieved by including a reference or link to the relevant terms in your written communication of acceptance. You may,
for example, refer the client or professional client (as the case may be) to the terms of service set out on your website or
to standard terms of service set out on the Bar Council‟s website (in which regard, please also refer to the guidance on
the use of the standard terms of service which can be found here
http://www.barcouncil.org.uk/media/185511/contractualterms.pdf ). Where you agree to do your work on terms and
conditions that have been proposed to you by the client or by the professional client, you should confirm in writing that that
is the basis on which your work is done. Where there are competing sets of terms and conditions, which terms have been
agreed and are the basis of your retainer will be a matter to be determined in accordance with the law of contract.

gC76 Your obligation under Rule C23 is to ensure that the basis on which you act has been defined, which does not
necessarily mean governed by your own contractual terms. In circumstances where Rule C23 applies, you should take
particular care to ensure that the client is clear about the basis for charging for any variation to the work where it may be
unclear. You must also ensure that you comply with the requirements of the Provision of Services Regulations 2009
http://www.legislation.gov.uk/ ukdsi/2009/9780111486276/contents. See further Rule C19 (not misleading clients or
prospective clients) and the guidance to that rule at gC52 to gC62.

gC77 If you are a self-employed barrister a clerk may confirm on your behalf your acceptance of instructions in
accordance with Rules C22 and C23 above.

gC78 When accepting instructions, you must also ensure that you comply with the complaints handling rules set out in
Section 2.D.

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gC79 When accepting instructions in accordance with Rule C22, confirmation by email will satisfy any requirement for
written acceptance.

gC80 You may have been instructed in relation to a discrete and finite task, such as to provide an opinion on a particular
issue, or to provide ongoing services, for example, to conduct particular litigation.

Your confirmation of acceptance of instructions under Rule C22 should make clear the scope of the instructions you are
accepting, whether by cross- referring to the instructions, where these are in writing or by summarising your
understanding of the scope of work you are instructed to undertake.

gC81 Disputes about costs are one of the most frequent complaints. The provision of clear information before work starts
is the best way of avoiding such complaints. The Legal Ombudsman has produced a useful guide “An Ombudsman‟s view
of good costs service” which can be found here http://www.legalombudsman.org.uk/downloads/documents/publications/
Ombu dsman-view-good-costs-service.pdf.

gC82 Where the instructions relate to public access or licensed access work and you are a self-employed barrister, you
will also need to have regard to the relevant rules at 2.D

rC99 You must notify clients in writing when you are instructed, or, if that is if not practicable, at the next appropriate
opportunity:.1 of their right to make a complaint, including their right to complain to the Legal Ombudsman (if they have
such a right), how, and to whom, they can complain, and of any time limits for making a complaint;

.2 if you are doing referral work, that the lay client may complain directly to chambers without going through solicitors.

rC100 If you are doing public access, or licensed access work using an intermediary, the intermediary must similarly be
informed.

rC101 If you are doing referral work, you do not need to give a professional client the information set out in Rules C99.1
and C99.2, in a separate, specific letter. It is enough to provide it in the ordinary terms of reference letter (or equivalent
letter) which you send when you accept instructions in accordance with Rule C21.

rC102 If you do not send a letter of engagement to a lay client in which this information can be included, a specific letter
must be sent to him giving him the information set out at Rules C99.1 and C99.2.

rC103 Chambers‟ websites and literature must display information about the chambers‟ complaints procedure.

QUESTION 5

You are instructed by a solicitor at Gladbury Crown Court to make a bail application for a client charged with an offence of
grievous bodily harm against his girlfriend. The reason you have been instructed at court is because original counsel in
the case has been taken ill. The defendant that you are asked to represent has numerous previous convictions for
violence. You represent the defendant and make the bail application. The judge refuses bail on the grounds that there are
substantial grounds for believing that, if released on bail, the defendant would fail to surrender, commit further offences
and interfere with witnesses. After the hearing you go down to the cells to see the client. He tells you that he doesn’t think
you tried hard enough to get him bail and he wants to make a complaint. What do you tell him about how to complain?

ANSWER

.  You should tell him that he has a right to complain and that, in the first instance, the complaint
should be made to chambers.

.  The defendant should be told that he can telephone the person at chambers designated to deal
with complaints.

.  If he prefers he can make a complaint in writing in which case a copy of chambers‟ complaints
procedure should be sent to him.

.  If the complaint is not resolved during the telephone call to chambers, he will be invited to put his
complaint in writing so that it may be investigated formally.

.  At that stage he will be sent a copy of Chambers‟ complaints procedure if this has not already
been done.

.  He will also be informed of the Legal Ombudsman‟s complaints procedure.

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.  You can tell him that Chambers‟ website carries a copy of the complaints procedure.

.  You should tell him that time limits apply which are set out in Chambers‟ complaints procedure.
See rC99 to 103 in the answer to Q.4 above. See also: Response to complaints rC104 All complaints must be
acknowledged promptly. When you acknowledge a complaint, you must give the complainant: .1 the name of
the person who will deal with the complaint and a description of that person‟s role in chambers; .2 a copy of the
chambers‟ complaints procedure;.3 the date by which the complainant will next hear from chambers.

QUESTION 6

As a barrister at Gladbury Chambers, do you have any duties regarding (a) ensuring harassment does not take place in
chambers; (b) ensuring that members of chambers can have parental or adoption leave; (c) ensuring there is a policy to
allow members of chambers to work on a part-time basis; (d) ensuring there is a reasonable adjustments policy.

ANSWER

The answer to all of the above is yes. The duty stems from the Equality and Diversity Rules set out at rC110.

rC110 provides that you must take reasonable steps to ensure that in relation to your chambers there is, amongst other
things:

.  A written Equality & Diversity Policy

.  At least one Equality & Diversity Officer

.  Fair Access to work

.  A written anti-harassment policy

.  A Parental and Adoption leave policy

.  A Flexible Working policy

.  A Reasonable Adjustments policy

.  A Diversity Data Officer Students should look at rC110 in detail in their own time and also the
Guidance at gC140 to gC150. This includes studying the „BSB Handbook Equality Rules‟ which can be found at
https://www.barstandardsboard.org.uk/media/1562168/bsb_equality_rules_ha ndbook_corrected.pdf This is in
students‟ printed materials and is available on the VLE.

QUESTION 7

You are a barrister at Old Gladbury Chambers. Your fee structure is such that when conducting conferences at a
solicitors’ offices you charge for travel from chambers. It follows that you make no travel charge when conducting
conferences in chambers. Due to the very old building you work in there is only staircase access to chambers. You are
instructed by a solicitor on behalf of a physically disabled client who is in a wheelchair. It is decided that you will attend the
solicitor’s office for the conference where there is easy wheelchair access. Are you still entitled to charge for travel in
accordance with your usual policy? Explain your answer.

ANSWER

.  No. It is unlawful to discriminate against someone, because of any protected characteristic,

including disability, by refusing to provide a service, providing a lower standard of service, or offering a service
on different terms than to other people.

.  The Equality Act 2010 contains the duty to make reasonable adjustments. Reasonable
adjustments need to be made where a practice, policy or procedure, or physical feature of premises, make it
impossible or unreasonably difficult for a disabled person to make use of a service. The duty also includes
making reasonable adjustments in the form of auxiliary aids or additional services (for example, the provision of
information on audio tape, or of a sign language interpreter) to enable disabled persons to make use of the
services provided.

.  It is unlawful for a barrister to pass on the costs of making reasonable adjustments to the individual
or individuals for whom those adjustments are made. rC12 - You must not discriminate unlawfully against,

20
 victimise or harass any other person on the grounds of race, colour, ethnic or national origin, nationality,
citizenship, sex, gender re-assignment, sexual orientation, marital or civil partnership status, disability, age,
religion or belief, or pregnancy and maternity. You are under an obligation to take reasonable steps to ensure
that chambers has a reasonable adjustments policy aimed at supporting disabled clients, its workforce and
others including temporary visitors to chambers (rC110.3.m). If chambers makes an additional service available
to clients for which there is normally a charge it will have to consider whether that additional service is a
reasonable adjustment in relation to the disabled client. If it is a reasonable adjustment, the cost cannot be
passed on to the disabled client.

Excellent guidance here: „BSB Handbook Equality Rules‟ which can be found at
https://www.barstandardsboard.org.uk/media/1562168/bsb_equality_rules_ha ndbook_corrected.pdf This is in students‟
printed materials and is available on the VLE.

QUESTION 8

You have been in full time practice as member of chambers for 4 years. A client who previously instructed you through a
solicitor in a commercial dispute contacts you at chambers to see if you can represent her direct in a similar case. What
are the qualification requirements to undertake public access instructions?

ANSWER

(1) Hold a full practising certificate. If you have less than three years‟ standing you must have a qualified person readily
available to you to provide guidance, if necessary;

(2) Have undertaken and satisfactorily completed a Bar Standards Board approved training course. Details of such
courses can be obtainedfrom the BSB website;

(3) Notify the Bar Council of your intention to undertake such work; and

(4) Have insurance cover as required by the Handbook. BMIF cover satisfies this requirement.

See „Qualifications Requirements‟ in Public Access Guidance for Barristers published on the BSB website guidance page
https://www.barstandardsboard.org.uk/regulatory-requirements/bsb- handbook/code-guidance/ (in printed materials and
on VLE) and rC120.

QUESTION 9

What legal activities are unregistered barristers permitted to carry out and what legal activities are reserved for practising
barristers only?

ANSWER

RESERVED FOR PRACTISING BARRISTERS ONLY

Under the Legal Services Act certain legal services are reserved to those who are authorised to provide them. For
barristers, only those who have practising certificates are authorised persons. Such services are known as „reserved legal
1
activities‟ which are as follows:

.  the exercise of a right of audience;

.  the conduct of litigation;

.  reserved instrument activities;

.  probate activities;

2
.  notarial activities and

.  the administration of oaths. As it is now a criminal offence to carry out a reserved legal activity
without a practising certificate, it is important that unregistered barristers are clear that they are not permitted to
carry out these services. In particular, the administration of oaths, which formerly could be performed by any
barrister, is now reserved for those with practising certificates. Advocacy is not a reserved legal activity unless it

21
 involves the exercise of a right of audience. Thus, advocacy before an arbitrator or other tribunal where rights of
audience are not required is not a reserved legal activity. PERMITTED As an unregistered barrister, you can
provide any legal services that are not reserved legal activities. However there are some important rules in the
BSB Handbook which you need to follow in doing so. Legal services are defined in the definitions section of the
Handbook as follows: “[Legal services] includes legal advice representation and drafting or settling any
1
statement of case witness statement affidavit or other legal document but does not include: Section 12 of the
2
Legal Services Act 2007 The Bar Council does not authorise any barrister whether practising or not to perform
notarial activities.

a) sitting as a judge or arbitrator or acting as a mediator, early neutral evaluation, expert determination and adjudications;
b) lecturing in or teaching law or writing or editing law books articles or reports;

c) examining newspapers, periodicals, books, scripts and other publications for libel, breach of copyright, contempt of
court and the like;d) communicating to or in the press or other media;

e) giving advice on legal matters free to a friend or relative or acting as unpaid or honorary legal adviser to any charitable
benevolent or philanthropic institution;f) in relation to a barrister who is a non-executive director of a company or a trustee
or governor of a charitable benevolent or philanthropic institution or a trustee of any private trust, giving to the other
directors trustees or governors the benefit of his learning and experience on matters of general legal principle applicable
to the affairs of the company institution or trust.

Legal services, other than reserved legal activities, can be supplied by anyone and are not subject to any special statutory
regulation.

This answer is taken from „Guidance for Unregistered Barristers (Barristers without Practising Certificates) – Supplying
Legal Services and Holding Out‟ published on the BSB website guidance page
https://www.barstandardsboard.org.uk/regulatory-requirements/bsb- handbook/code-guidance/ (in printed materials and
on VLE). See also oC34, rC144, gC153 (on p.82 Handbook).

QUESTION 10

What are the potential penalties for academic misconduct on the Bar Professional Training Course?

ANSWER

A student found guilty by their course provider of cheating or other misconduct on a BPTC is guilty of a „serious matter‟
and the Inns‟ Conduct Committee may:

. Advise the student as to future conduct;

. Reprimandthestudent;

. Order that the student‟s call to the Bar be postponed for a specified period;

. DirectthatthestudentbeexpelledfromtheInn(inwhichcasetheInn must expel the student).

These penalties are set out in rQ109.

Being found guilty by a course provider of cheating or other misconduct on the BPTC under rQ104.2.e amounts to a
„serious matter‟ as defined in the Definitions section of the Handbook.

QUESTION 11

You have been in full time practice as a barrister for one year. What are your Continuing Professional Development
requirements in each of the following situations?(a) During your first 3 calendar years of practice;

(b) Every calendar year after your first 3 years;(c) In the event that you take some time off and hold a practising certificate
for 6 months during a calendar year.

ANSWER

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(a) 45 hours (b) 12 hours (c) 6 hours

rQ132 Any practising barrister who starts practice on or after 1 October 2001 must during the first three calendar years in
which the barrister holds a practising certificate after any pupillage year complete a minimum of 45 hours of continuing
professional development.

rQ133 Subject to Rule Q134, any barrister:

.1 must, if he holds a practising certificate or certificates throughout the whole of any calendar year, complete a minimum
of 12 hours of continuing professional development during that period; and

.2 must, if he holds a practising certificate or certificate for part only of a calendar year, complete one hour of continuing
professional development during that calendar year for each month for which he holds a practising certificate.

QUESTION 12

You are prosecuting a fraud case in the Crown Court. On the morning of the trial the Officer in the Case informs you that a
mistake has been made: it was believed that the complainant was a man of good character. In fact he has numerous
previous convictions for fraud himself and also for perverting the course of justice. The details of his previous convictions
throw credibility on a number of the assertions made by the defence. In light of this information you take the view that
there is no longer a realistic prospect of conviction and you should therefore offer no evidence. Before offering no
evidence, what should you do?

ANSWER

You have reached a decision in accordance with the Code for Crown Prosecutors that there is not a realistic prospect of
conviction. Under the Farquharson Guidelines (4(d) where at trial you wish to offer no evidence, you should consult your
instructing solicitor/Crown Prosecutor for his/her views. If you are unable to agree on the course of action to take, you
must make the final decision. Here such a disagreement is very unlikely because your decision is based on an
unexpected turn of events which you could not have foreseen.

See „The Farquharson Guidelines – The Role and Responsibilities of the Prosecution Advocate‟
http://www.cps.gov.uk/publications/prosecution/farqbooklet.html See also the Code for Crown Prosecutors – January
2013 http://www.cps.gov.uk/publications/docs/code_2013_accessible_english.pdf (Both documents are in printed
materials and on VLE).

Part 2: Short Answer Questions SAQ1

Claire Ansell is a member of the criminal bar. She is representing Paul Edwards, a man with no previous convictions, who
is being tried at Wealdham Crown Court on one count of assault occasioning actual bodily harm. The allegation against
Edwards is that he punched his former girlfriend, Jade McInnes, in the face breaking her nose. Edwards denies the
allegation and claims that the injury was sustained when McInnes walked into an open kitchen cupboard door. Yesterday,
Ansell called Edwards to give evidence. During the course of his evidence, Edwards confirmed that he was a man of
positive good character with no previous convictions. In light of the lack of any evidence suggesting that Edwards was of
bad character, this course was not objected to by the trial judge or the prosecution advocate. This morning, as Ansell was
in the robing room getting ready to make her closing speech to the jury, she saw Edwards outside the court building
arguing with his new girlfriend. During the course of the argument Ansell saw Edwards punch his girlfriend in the face.
Ansell has challenged Edwards about what she saw. Edwards has told her to say nothing.

(a) What should Ansell do? Give full reasons for your answer. (4 marks)

After leaving the Crown Court, Ansell realised that she was late for a conference with a client on remand at South Wessex
prison. She was driving, and so she decided to take a short cut to the prison, which involved driving through the Vincent
Brown housing estate. As she was doing so, she drove over a pedestrian crossing as a group of children were starting to
cross. This was observed by two uniformed police officers in an unmarked police vehicle. They followed, and managed to
stop, Ansell who was arrested and subsequently charged with dangerous driving, which is an indictable offence.

Immediately after being released on bail, Ansell calls her head of chambers, Christopher Ryan, to let him know what has
happened.

(b) What advice should Ryan give her and why? (2 marks)

Ansell subsequently pleaded not guilty and elected trial in the Crown Court. You are in Ansell‟s chambers, although you
don‟t really know her, and rarely see her. Jay Dattani from CPS South Wessex has asked you to prosecute Ansell‟s case.
You have been at the criminal bar for 12 years, appear regularly in the Crown Court and are free to undertake the case.

23
You consider the proposed fee to be a proper one. You were already aware of Ansell‟s case, through friends in chambers,
but haven‟t spoken with her about it and know no more than has already appeared in the local papers.

(c) With full reasons, what should you say to Dattani? (4 marks)(10 marks in total)

ANSWER

Please note that you will not be expected to include in your answers the Handbook references included below in square
brackets. These are here for reference purposes only.

(a) Maximum 4 marks (of 6 available)

 You must observe your duty to the court in the administration of justice (CD1) (1 mark)

 This includes an obligation to not knowingly or recklessly mislead the court [rC3.1] (1 mark) or
Knowingly misleading the court includes inadvertently misleading the court if you later realise that you have misled
the court, and you fail to correct the position [gC4] (1 mark)

 In light of Ansell‟s knowledge of Edwards‟s use of violence, she cannot continue to represent him
without misleading the judge and jury about his character (1 mark)

 Therefore, she MUST withdraw from the case on the basis of professional embarrassment
[rC25/rC21.6] (1 mark)

 This is because if she continued to represent him, she would be misleading the court in violation of
the provisions of the Code [rC21.6] (1 mark)

 Arguably, she should report the matter to the police to comply with your core duty not to behave in
a way which is likely to diminish the trust and confidence which the public places in you or in the profession [CD 5],
although there is nothing in the Code expressly requiring her to do so. Application of these principles to support an
argument for or against informing the police will be rewarded with (1 mark) (b) Maximum 2 marks (of 4 available)

 Ansell must report herself promptly to the BSB [rC65] (1 mark)

 As she has been charged with an indictable offence [rC65.1] (1 mark)

 If she is convicted of the offence, she will be in breach of her core duty to behave in a way which is
likely to diminish the trust and confidence which the public places in her and the profession [CD 5] (1 mark)

 This is because she would have found to be guilty of criminal conduct [gC25.3] (1 mark)

(c) Maximum 4 marks (of 5 available)

.  You must maintain your independence [CD 4] (1 mark)

.  You must not accept instructions to act in a particular matter if there is a real prospect that you are
not going to be able to maintain your independence [rC21.10] (1 mark)

.  Your ability to perform your duty to the court [CD1] and act in the best interests of your client [CD2]
may be put at risk if you act in circumstances where your independence is compromised (1 mark)

.  Therefore if you feel that because you know Ansell (albeit vaguely) and because she is a member
of your chambers your independence is compromised you must not accept the instructions (1 mark for
intelligent discussion to this effect)

.  Equally, it could be argued that the mere fact that you know her and that she is in your chambers
is not, in itself, enough to refuse instructions and that, consequently, you MUST accept them because of the
cab-rank rule [rC29] (1 mark for intelligent discussion to this effect) [It is helpful to add here that the cab-rank
rule under rC29 does not apply if you are required to refuse to accept the instructions under rC21 [rC30]. (10
marks in total) SAQ2 You are instructed to represent the defendant, Mark Pearson, at trial in the Crown Court.
He is charged with burglary. The prosecution case rests on ID evidence; a member of the public says that she
clearly saw Mark (who has a very distinctive facial tattoo) running away from the complainant‟s property
carrying a DVD player at around the time of the alleged offence. Mark denies the offence and has given you
instructions that he was in another part of Gladbury with a group of friends. One of these friends, Gavin

24
 Underhill, has agreed to attend Court to give evidence confirming this alibi. Gavin works as a tarot card reader
and is something of a local celebrity. He is of good character. During her cross examination, the prosecutor puts
it to Mark that he is lying about being with Gavin at the time of the burglary, and that Mark must have bribed
Gavin to give evidence. Mark denies both allegations. However, when Gavin gives evidence, the prosecutor
does not ask him about the alibi evidence, nor does she allege that he is lying to protect Mark. Instead, she
focuses her cross examination on his unusual profession. Her last question is “how can you live with yourself,
conning vulnerable people with your superstitious nonsense?” In her speech to the jury, the prosecutor says
“It’s as clear as day that Mr Underhill has lied about the defendant’s alibi. He has blatantly perverted the course
of justice. I can tell you with complete certainty that the two of them cooked this story up together. This must be
true because, as you’ve heard, Mr Underhill makes his living telling lies”.

In conference immediately before the trial, Mark tells you he has „heard on the grapevine‟ that a notorious local thief,
Angie Coppitt, was responsible for the burglary, and that she has also been interviewed by the police. You have seen
Angie in Gladbury Crown Court before but have never represented her. Unlike your client, Angie Coppitt is of very short
and slight build. She has no facial tattoos. You do not have the opportunity to follow up on your client‟s instructions.

(A) Could you put the allegation against Angie in full to the officer in the case during cross examination? Give full reasons
for your answer. (2 marks)

(B) Could you put the allegation to the officer in the case without mentioning Angie Coppitt by name? Give full reasons for
your answer. (2 marks)

(C) Is the prosecutor‟s cross examination and closing speech in accordance with the Code? Give full reasons for your
answer. (8 marks)

ANSWER

(A)Max 2 marks (of 2 available)

.  No, you cannot allege that Angie Coppitt is guilty of the offence [rC7.3] (1 mark)

.  Because you do not have any reasonable grounds for the allegation [rC7.3] (1 mark) (B)Max 2
marks (of 2 available)

.  No, you still cannot make the allegation [rC7.3] (1 mark)

.  Even though you can make an allegation in court against a third party without naming them unless
reasonably necessary, you must still have reasonable grounds for the allegation [rC7.3c] (1 mark) (C)Max 6
marks (of 7 available)

.  No, neither are in accordance with the Code [CD1, rC3.2, rC7.1 and .2] (1 mark)

.  The prosecutor made a serious allegation against the witness Gavin, in her closing speech (1
mark), namely that he lied/perverted the course of justice [rC7.2] (1 mark)

.  She did not give Gavin the chance to answer that allegation in cross- examination. [contrary to
rC7.2.] (1 mark)

.  In cross examination, by accusing Gavin of “conning people”, she was asking a question
calculated merely to insult, humiliate or annoy him [contrary to rC7.1.] (1 mark)

.  In her closing speech she gives her personal opinion on the facts: “I can tell you with complete
certainty that the two of them cooked this story up together” [contrary to rC7.4] (1 mark)

.  In her closing speech she makes a statement calculated merely to insult, humiliate or annoy Gavin
“he makes his living telling lies” [contrary to rC7.1] (1 mark). (10 marks in total) SAQ3 You are in Chambers as a
self-employed barrister specialising in admiralty and tax law. Recently Chambers have been approached by
Donovan & Murray Solicitors who you know have a large amount of work on behalf of HMRC. Your clerks and
other senior members of Chambers are very keen that you ensure the firm instructs you so that a relationship
could be commenced with the firm and Chambers. You arrange to meet the senior partner of the firm in a local
wine bar after a hearing at the High Court. You know that the partner wants to discuss instructing you in relation
to a forthcoming trial on behalf of HMRC where the brief fee will be in the region of £20,000. When you meet the
partner you immediately offer to buy him a drink and suggest that you share a bottle of Champagne. The senior
partner then proposes that he would instruct you in relation to the forthcoming trial but suggests he will do so
only if the firm takes 10% of the brief fee.

25
. (a) Was it ethically appropriate for you to offer to buy the partner a bottle of champagne? Give reasons for your
answer. (3 marks)

. (b) In light of Chambers‟ keenness to establish a relationship with the firm can you accept the instructions on the basis
that the solicitor has proposed? Give reasons for your answer. (2 marks)

. (c) If you refused the arrangement suggested by the solicitors, would it be ethical for you to propose that the solicitor
simply paid you an additional fee (over and above your brief fee) if he felt particularly satisfied with the service
that you provided? Give reasons for your answer. (3 marks)

. (d) Following the meeting with the solicitor you receive a brief to represent HMRC. On reading the brief you note that
there are a number of witness statements from HMRC investigating officers. You consider that all the witnesses
are relevant to the case and it is your intention to call them all as part of the case. You also see in your
instructions a note from the senior partner telling you that you should not call one of the HMRC‟s investigating
officers because he‟s a “loose cannon”. Can you accept the instructions? Give reasons for your answer. (2
marks)

ANSWER

Please note: for parts (a) to (d) students are not expected to include the Handbook references included below in square
brackets.

(a) Maximum 3 marks (of 4 available)

.  Yes it would be ethically appropriate for you to buy a bottle of champagne (1 mark)

.  You have a duty to act with honesty and integrity [rC9] (1 mark)

.  You may be seen as compromising your independence if (a) you give a gift (apart from modest
value) [ghC18.1b] or (b) give or receive entertainment at a disproportionate level [gC20] (1 mark for either both
(a) and (b))

.  Bearing in mind the size of the brief fee the value of the champagne would appear to be of modest
value and would not lead to others to think your independence had been compromised (1 mark for intelligent
discussion to this effect). (b) Maximum 2 marks (of 3 available)

.  No you should refuse to accept the instructions (1 mark)

.  You must only accept a fee arrangement which is legal [CD2, CD3, CD4, CD5, rC9.7; see also
BSB Guidance on Referral and Marketing Arrangements for Barristers] (1 mark)

.  You are not permitted to make a payment to a person for the purposes of procuring professional
instructions [gC29]. (1 mark) (c) Maximum 3 marks (of 4 available)

 No it would also be unethical for you to propose such a course. (1 mark)

 Because you are not entitled to accept money in addition to the brief fee [gC18.8] (1 mark)

 Doing so would be a clear example of being seen to compromise your independence [CD4, gC18]
(1 mark)

 An additional mark can be awarded here for students who recognise that accepting additional
money is different from accepting a modest gift (1 mark). Modest gifts are permitted whereas money
is not, albeit a gift with every brief would doubtless breach CD4 as well as, potentially, CD2, CD3 and
CD5. (d) Maximum 2 marks (of 2 available)

.  No you must not accept the instructions [rC21.5] (1 mark)

.  Because these instructions seek to limit your ordinary authority or discretion in the conduct of
proceedings in court [rC21.5] (1 mark)

Part 2: Short Answer Questions

SAQ 1

26
You are a tenant at Gladbury Chambers. You are an experienced barrister specialising in the field of criminal law. You
were due to be in court for the next month but the defendant in your case unexpectedly pleaded guilty, so your diary for
the next four weeks is now clear. You are contacted by a firm of solicitors, Modds LLP, who send you a lot of work; they
wish you to appear in a two week trial to represent a defendant called Daniel Sanders. Sanders will be paying privately
and the fee is a proper one in your view. The trial is due to start in one week so you would have adequate time to prepare
and carry out the case. Sanders is a member of a homophobic organisation called „No Way Gay‟ some of whose
members have been convicted of hate crimes predominantly against gay men. Sanders is charged with murder. He is
accused of stabbing a gay man outside a gay bar in Old Gladbury. The victim died at the scene. You are aware of Daniel
Sanders only because he has appeared on numerous posters around Gladbury espousing his homophobic beliefs. You
hold strong personal views against „No Way Gay‟ and other similar groups.

(A) Given the views that you hold are you entitled to reject the instructions to represent Sanders at his forthcoming murder
trial? Give full reasons for your answer.

(5 marks)

(B) If Daniel Sanders was a legally aided client rather than a privately paying client, could this make any difference as to
whether or not you could refuse this case? Give full reasons for your answer.

(3 marks)

(C) Assume that you accepted the case and saw Daniel Sanders in conference two days later at HMP Gladbury together
with your instructing solicitor. During the conference, Sanders said that he thought you would represent him extremely
well and was looking forward to his trial. He then turned to your solicitor and said he was sacking the firm, Modds & Co.,
because he did not feel they believed in him or his chances at trial. In these circumstances are you obliged to attend his
trial and represent him on the murder charge? Give full reasons for your answer.

(2 marks)

ANSWER(A) Maximum 5 marks (of 6 available).

(1) No, I would not be entitled to refuse these instructions (1 mark);(2) Because I am bound to accept them under the
„cab-rank‟ rule [rC29] (1 mark); (3) I must accept these instructions irrespective of (a) the identity of the client(1 mark); (b)
the nature of the case to which the instructions relate (1 mark); or (c) any belief or opinion I have formed about the
character, reputation, cause, conduct, guilt or innocence of the client (1 mark. Students are not expected to set (c) out
verbatim; it will be sufficient for the mark if the substance is correct);(4) A further mark can be awarded for students who
recognise that refusing instructions due to one‟s own personal views about the case/client is contrary to the requirement
not to discriminate [rC28; gC88] (1 mark).

(B) Maximum 3 marks (of 4 available).

(1) It could make a difference (1 mark);(2) But I could refuse the instructions only if I considered that the legal aid fee for
the case was not a proper fee [rC30.8, gC90] (1 mark);(3) The cab-rank rule applies irrespective of whether the client is
paying privately or is publicly funded [rC29] (1 mark);(4) A further mark can be awarded for students who recognise that
refusing instructions on any ground relating to the source of any financial support which may properly be given to the
client for the proceedings is contrary to the requirement not to discriminate [rC28; gC88] (1 mark).

(C) Maximum 2 marks (of 3 available).

(1) No I would not be obliged to attend his trial (1 mark);(2) Because after my professional client withdraws I am no longer
instructed [gC84] (1 mark);(3) Unless I am (a) appointed by the court; or (b) instructed by a new firm of solicitors or (c)
directly instructed on a public access basis if I am qualified to carry out such work [gC84; rS24] (1 mark for any or all of
(a), (b) and (c));

SAQ 2

Max is a barrister and is on his way to court to represent a celebrity client in a high profile divorce case which has
attracted a huge amount of press attention.

Max intends to take the train to central London but on arriving at his local train station he discovers there is a problem with
the trains; most of them are either cancelled or subject to severe delays. Not wanting to be late for court he decides to
take a taxi. It takes 20 minutes before he is able to obtain one. He tells the taxi driver his destination. He knows the
quickest route to court so he tells the driver the route he should take. He asks for a rough estimate of how long it will take
to get to court; the taxi driver informs him it should take no more than 20 minutes. By this time it is 9.30am; he is due to
see his client at 10am and his case is due to be heard at 10.30am.

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Max spends the next 15 minutes reading his papers; when he looks up from his papers he notices that the driver has
taken a much longer route to court and that he is now stuck in a very long traffic jam. By this time it is 10.00am and he is
convinced he is going to be late for court.

He is annoyed that the taxi driver has ignored his instructions. He tells him: "Because of your stupidity, I'm going to be late
for court. I am a Barrister, and therefore I am far more important than you. If I tell you to do something, you do it. You
bloody imbecile. I have a good mind to use my influence as a lawyer and get you charged with obtaining a pecuniary
advantage by deception".

(a) With reference to the Handbook, has the barrister conducted himself appropriately? Give full reasons for your
answer. (4 marks)

(b) The taxi arrives at court at 10.45am. The fare is £85, Max is very upset and refuses to pay anything. He says to
the driver: "If you had done as I had instructed, I wouldn't now be late for court and the fare would have been no
more than £25. Now you’re getting nothing.” Max walks away without paying. With reference to the Handbook, what
ethical issues and obligations arise? (4 marks)

(c) What should Max have done once he realised he was going to be late? Give full reasons for your answer. (2
marks)

ANSWER

Please note: for parts (a) to (b) you are not expected to include the Handbook references included below in square
brackets in your answers. These are included for reference purposes.

(A) Maximum 4 marks (of 6 available)• The barrister has not conducted himself appropriately. (1 mark)

- By mentioning his profession, and using his influence to secure a criminal charge against the taxi driver, the
barrister has behaved inappropriately. [gC25. 7; gC26] (1 mark)

- He has behaved in a way that is likely to diminish the trust and confidence which the public places in the
profession. [CD5] [gC16] (1 mark)

- By mentioning his profession, and suggesting he might use his influence to secure a criminal charge against the
taxi driver, the barrister has not acted with honesty and integrity. [CD 3; r C8; gC16; gC26] (1 mark)

- His behaviour is seriously offensive and/or discreditable [gC25. 4] (1 mark)

- He has abused his professional position. [gC25. 7] (1 mark) (B) Maximum 4 marks (of 6 available)

. Max is in breach of his duty to act with honesty and integrity by refusing to pay the fare. [CD3] [gC25] (1 mark)

. He has acted dishonestly. Even if he disputes owing £85, he is aware that he owes the driver at least £25. (1 mark)

. He must therefore report promptly to the Bar Standards Board [rC65.7] (1 mark)

. Because he has committed serious misconduct by refusing to pay the fare. (1 mark)

. Serious misconduct includes dishonesty. [gC96.1] (1 mark)

. He should take all reasonable steps to mitigate the effects of serious misconduct, such as trying to locate the taxi
driver and paying him the money he owes. [gC94] (1 mark) (C) Maximum 2 marks (of 4 available)

 Max should have called his client and/or instructing solicitor to notify them he would be late [CD2,
CD7, oC10, oC11, oC15, rC15.1, gC38] (1 mark)

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  Because you must provide a competent service to your client and this includes treating your client
with courtesy and consideration [CD7, gC38] (1 mark)

 Max should have contacted the court to inform them that he would be late and why. (1 mark)

 In order to promote the client‟s best interests, he should have asked the court not to start the case
until he arrived. (1 mark)

SAQ 3

You have recently been taken on as a tenant at Gladbury Chambers. During your pupillage you have become increasingly
concerned about the management of briefs in Chambers. Papers are left all over the place, computer terminals are easily
overlooked and the clerks leave all the papers that come into Chambers on a big table in the centre of the Tenants‟
Room.

(A) What are your ethical responsibilities in this situation? (4 marks)(B) What practical measures should your chambers
have in place for the protection

of data? (3 marks)

(C) Whilst you are in chambers, a colleague in Chambers, Emma, comes into the room. She tells you that she is not
working tomorrow. You have a lot of work on and tomorrow morning you are meant to be dealing with a case
management hearing in the County Court. Given your workload you offer the case to Emma; she is happy to accept and
takes the papers from you. Are you entitled to return the papers to Emma in these circumstances? Give full reasons for
your answer (3 marks)

ANSWERS

(A) Maximum 4 marks (of 5 available)

.  You must take reasonable steps to ensure that your practice is efficiently and properly
administered having regard to the nature of your practice (rC87)(1 mark)

.  you must take reasonable steps to ensure that your chambers is administered competently and
efficiently; (rC89.1) (1 mark)

.  Barristers are data controllers under the Data Protection Act and are therefore responsible for
compliance with the Act (see BSB Confidentiality Guidance) (1 mark).

.  you must take reasonable steps to ensure that: proper arrangements are made in chambers for
the confidentiality of clients‟ affairs; (CD6, rC89.5)(1 mark).

.  For the purposes of Rule C89 the steps which it is reasonable for you to take will depend on all the
circumstances including the role you play in Chambers [rC90.1] (1 mark).

(B) Maximum 3 marks (of 5 available)

.  Papers should not be left where others can read them (Confidentiality Guidance) (1 mark)

.  Computers should be password protected (Confidentiality guidance) (1 mark)

.  There should be suitable arrangements in place for distributing papers and sending faxes and
emails (Confidentiality Guidance) (1 mark)

.  Laptops /USBs/CDs/PDAs should only be used to store information for immediate business
purposes (Confidentiality Guidance) (1 mark)

.  When no longer required all confidential material must be disposed of securely for example by (a)
returning it to the client or professional client, (b) shredding paper or (c) permanently erasing information.
(Confidentiality Guidance) (1 mark for any or all of (a(, (b) or (c)).

(C) Maximum 3 marks (of 5 available)

29
.  No you are not entitled to return the brief in these circumstances. (1 mark)

.  Because no circumstances have arisen where you must cease to act and return your instructions
[rC25/rc21] (1 mark)

.  And no circumstances have arisen where you may cease to act and return your instructions [under
rC26] (1 mark)

.  You must not cease to act and return instructions to another person without the consent of your
client or your professional client [rC27] (1 mark)

Bar Transfer Test 2014 --Mock 1 Professional Ethics

QUESTION 1

You are instructed to appear on behalf of a client named Terry Mason at his sentencing hearing in the Crown Court. Mr
Mason previously pleaded guilty to an offence of theft and his case was then adjourned for the preparation of a pre-
sentence report.

You introduce yourself to prosecution counsel and she hands you a copy of a record of antecedents in the name of “Terry
Mason”, which indicates that your client has no previous convictions.

Whilst discussing the case with your client in conference, he instructs you that the prosecution seem (through no fault of
his) to have obtained the wrong set of antecedents. In fact he tells you that he has two previous convictions for burglary,
the most recent of which was in 3 years ago. For that offence he received a sentence of two years’ imprisonment.

(a) What advice do you give Mr Mason in respect of the wrong antecedents?

(6 marks)

Your next case is representing Alex Guinness at his trial for dangerous driving. Alex has always maintained that his car
was stolen and it was someone else driving it erratically at speed down Gladbury High Street until it crashed into a bus
stop. He is relying on a defence of alibi and he has a witness to support this. However, when you see him at court he tells
you that he was, in fact, driving the car. However, he tells you he is going to take his chances at trial and he refuses to
plead guilty.

(b) Can you still represent him at trial? Provide full reasons for your answer.

(4 marks) (10 marks in total)

ANSWER

Please note: for parts (a) and (b) you will not expected to include in your answers the Handbook references included
below in square brackets. These are here for reference purposes only.

(a) Maximum 6 marks (of 7 available)

 In these circumstances, you should inform the defendant that the information he has provided will remain
confidential unless he chooses to waive privilege (1 mark)

 You are not entitled to disclose the previous convictions without his consent [gC12, rC15.5, gC42/43] (1
mark)

 Because you have a duty of confidentiality [CD6, rC15.5] (1 mark)

 If he chooses not to waive privilege and allow you to disclose the mistake, you can continue to represent him
[gC12] (1 mark).

 But you cannot say anything that misleads the court [CD1, rC3.1, gC12,] (1 mark)

 In particular, you cannot say anything that would suggest he has no previous convictions or you cannot say
anything that would suggest that he has not been to prison (1 mark max for using both of these examples,
either of them or another appropriate example).

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  You should advise the Defendant that if you are asked directly, you cannot mislead the Court by giving an
untruthful answer (1 mark) (b) Maximum 4 marks (of 6 available).

 You are entitled to represent Alex Guinness at trial (1 mark) but you must not mislead the court in doing so
[rC3.1, gC9] (1 mark)

 Your duty to act in the best interests of your client is subject to your duty to the court [rC4, gC9] (1 mark)

 You would not mislead the court if you tested the reliability of the prosecution evidence [gC9] (1 mark)

 You would mislead the court if you advanced a positive case which you knew from your instructions was
untrue [rC6.1, rC6.2, gC10) (1 mark)

 This would include suggesting that Alex Guinness did not commit the crime, someone else committed the
crime or calling an alibi witness [gC10] (1 mark max for using all of these examples, any of them or another
appropriate example). SAQ 2 is on the next page

QUESTION 2

Charles Watkins, a junior barrister, practising in civil law in your chambers, secured a notable victory for his lay client,
Paul Ratcliffe, in a breach of contract case against Media Moguls Ltd. Two weeks after the judgment was handed down,
and following receipt of payment in full for his professional services, Charles received the following correspondence from
his lay client.

“Dear Charles,

Thank you for all your efforts on my behalf. I have purchased a dozen crates of champagne (very superior vintage!! A
hundred pounds a bottle!!) by way of saying thanks. I need you to be on top form when we come up against Media Moguls
again, as we surely will. There is no way, right or wrong, that I will let them get the better of me. I want you behind me,
case or no case. Let me know where you want the bubbly delivered.

Cheers,

Paul. ”

. (a) Charles is unsure of what to do and seeks your advice as to whether or not he should accept this gift. What advice
would you give him? Provide full reasons. (3 marks)

. (b) Again giving full reasons, what advice would you offer Charles if he had not received the above letter, but,
following payment for his services, he had received in chambers a bottle of champagne (value £30), which had
arrived with the following note? “Dear Charles,Many thanks for all your help Paul.” (2 marks)

Some six weeks later Charles is contacted by the instructing solicitor for Media Moguls (MM) who informs him that it is
going to be necessary to litigate against Paul Ratcliffe again on a matter closely related to the previous case and which
will cover similar ground. However, the chief executive of MM was so impressed by Charles’ performance that MM now
wishes Charles to accept instructions on its behalf. The chief executive also believes that Charles’ inside knowledge will
be of great assistance.

(c) Advise Charles as to whether or not he should accept instructions from MM under the above circumstances. Explain
the reasoning for your advice.

(5 marks) (10 marks in total)

ANSWER

Please note: for parts (a) to (c) you will not expected to include in your answers the Handbook references included below
in square brackets. These are here for reference purposes only.

(a) Maximum 3 marks (of 4 available)

 You should advise Charles not to accept this gift (1 mark)

 Because the size of the gift (1 mark) would reasonably lead others to think that Charles’ independence has
been compromised [CD4, rC3, rC8, gC19] (1 mark)

31
  And could be seen by others to undermine his honesty and integrity [CD3, rC8, gC19] (1 mark) (b)
Maximum 2 marks (of 3 available)

 Charles can accept this gift (1 mark)

 Because it is a gift of modest value (1 mark)

 Therefore it is unlikely to be seen as capable of compromising his independence or undermining his integrity
(1 mark max for reference to both or either independence or integrity) (c) Maximum 5 marks (of 6 available)

 You should advise Charles that he must not accept these instructions (1 mark)

 Because there is a clear conflict of interest between his former client Paul and his prospective
client MM [rC21.3] (1 mark)

 And because information which is confidential to Paul is relevant to the case with MM [rC21.4,
CD6, rC15.5, gC42] (1 mark)

 Potentially Charles could act if both Paul and MM give their informed consent to him acting in
these circumstances [rC21.3, rC21.4] (1 mark)

 Such informed consent is unlikely to be given because MM want to instruct Charles partly to obtain
confidential information about Paul (1 mark)

 If Charles is being asked to use his “inside knowledge” to assist MM in the absence of informed
consent from Paul, he is being asked to act in breach of the provisions of the BSB Handbook and
therefore must not accept the instructions [rC21.6] (1 mark) (10 marks in total) SAQ 3 is on the next
page

QUESTION 3

Dermot Given is a self-employed barrister and practising Roman Catholic. He is a fervent supporter, but not a member, of
the Society for the Protection of Unborn Children (SPUC); an anti-abortion group. Williams & Co. Solicitors have
instructed Mr Given to defend Thomas Luther at a criminal trial, upon which the trial date is set, in which Mr Luther has
been indicted on two offences of Causing Grievous Bodily Harm with Intent. The basic facts are that Mr Luther, a member
of Pro Choice - a group which campaigns for the right to terminate pregnancy - attended a public demonstration by SPUC
and allegedly threw acid over several of the SPUC demonstrators.

Answer the following questions with FULL explanations as to your answer:

. (a) Must Mr Given accept the instructions regardless of any personal views on the issue of abortion or can he refuse
to accept the instructions on the basis that Mr Luther’s beliefs and opinions are unacceptable to him? (5 marks)

. (b) If Mr Given had attended the demonstration and was a witness to the alleged incident should he accept or decline
the instructions? (2 marks)

. (c) If Mr Given had not attended the scene at the time of the incident but had attended later to take photographs of the
location which are unchallenged, should he accept or decline the instructions? (1 mark)

. (d) If Mr Given has a part-heard and other existing commitments which mean he has limited time to devote to other
new cases, can he decline the Luther case? (1 mark)

. (e) If Mr Given was a commercial law specialist and had never conducted a criminal trial before, would he be able to
return the instructions? (1 mark) (10 marks in total)

ANSWER

Please note: for parts (a) to (e) you will not expected to include in your answers the Handbook references included below
in square brackets. These are here for reference purposes only.

(a) Maximum 5 marks (of 6 available)

 Mr Given must accept the instructions (1 mark)

32
  because he is subject to the ‘cab-rank’ rule [rC29] (1 mark)

 This means that he must accept the instructions if they are appropriate taking into account his experience,
seniority and/or field of practice [rC29] (1 mark)

 This is irrespective of any belief or opinion he may have formed about Thomas Luther [rC29] (1 mark)

 Mr Given is not entitled to refuse instructions on the ground that the nature of the case is objectionable to
him or to any section of the public [rC28] (1 mark)

 Or on the ground that the conduct, opinions or beliefs of Thomas Luther are unacceptable to him or to any
section of the public [rC28] (1 mark) (b) Maximum 2 marks (of 2 available)

 Mr Given must not accept instructions where there would be a real prospect that he would not be
able to maintain his independence [rC21.10] (1 mark)

 This would be the case if he was the advocate in a case where he was likely to be called as a
witness [gC73] (1 mark) (c) Maximum 1 mark (of 1 available)

 He should accept the instructions because this evidence is not challenged and he will not therefore be a witness in the
case [gC73] (1 mark)

(d) Maximum 1 mark (of 1 available) He must decline the Luther case if he does not have enough time to deal with the

case [rC21.9] (1 mark)

(e) Maximum 1 mark (of 1 available)

 He must decline the Luther case because he is not competent to handle the case or otherwise does not have sufficient
experience to handle it [rC21.8] (1 mark max for referring to both competence and experience or either)

This is the end of the question paper

(10 marks in total)

Short answer questions Professional Ethics

QUESTION 1

A claim has been started, concerning the ownership of shares in a business. The claimants are brother and sister, Mr Leo
Gardiner and Miss Teresa Gardiner. The defendants are other family members. You represent the claimants at an interim
directions hearing. Just before the hearing, the defendants make an offer of settlement which is much lower than the sum
that you advise the claimants they are likely to obtain at trial. The claimants tell you that they will not accept the offer.
However, during the interim hearing, the Judge directs that all parties should disclose their personal financial affairs over
the previous three years to help the court to decide the ownership of the business.

After the hearing, you tell the claimants that they should expect their personal financial affairs to be disclosed in open
court and advise them that disclosure is necessary in order to succeed in their claim. Miss Gardiner immediately says that
she has changed her mind and she would like to accept the offer which was made before the hearing, explaining “I don’t
want my private affairs dragged through the Court.” Mr Gardiner says that she is being ridiculous, that this is a direction
that they all have to comply with and he is not prepared to accept the offer because it is far too low. Mrs Gardiner says
that under no circumstances is she willing to comply with such an order and they must settle immediately.

Please answer the following questions, giving full reasons for your answer in each case.

(a) Can you continue to act for both clients in these circumstances? Explain your answer fully. (4 marks)

Half an hour later, your pupil arrives at court and hands you a copy of a case that she has just read about. It is a judgment
from the Court of Appeal that has just been reported. It completely undermines your case. If the defendants’ opponent
becomes aware of it he will almost certainly withdraw his offer and your clients will end up with nothing.

10. (b) What should you do in these circumstances? Explain your answer fully. (2 marks)

33
11. (c) What action would you take if both clients accused you, without justification, of complete incompetence. (3
marks)

12. (d) If after the interim hearing Mrs Gardiner tells you that you had misunderstood her instructions and therefore
a submission you made to the judge during the interim hearing was incorrect, what should you do and why?

(1 mark) (10 marks in total)

ANSWERS

Please note: for parts (a) to (d) you are not expected to include the Handbook references included below in square
brackets in your answers. These are included for reference purposes.

(a) Maximum 4 marks (of 5 available).

 You cannot continue to act for both clients [rC25] (1 mark)

 Because a clear conflict of interests has arisen between Mrs Gardiner and Mr Gardiner [rC25,
rC21.3] (1 mark)

 You can potentially continue to act for clients who are in conflict where they give their informed
consent for you to continue acting [rC21] (1 mark)

 But in these circumstances you are unable to act in the best interests of each client as if they were
your only client [CD2, gC37] (1 mark)

 You must not withdraw before clearly explaining to your client or professional client your reasons
for doing so [rC27] (1 mark) NOTES (for revision purposes): CD2: “You must act in the best interests of each client.”
gC37: “... you may only accept instructions to act for more than one client if you are able to act in the best interests of
each client as if that client were your only client, as CD2 requires of you.” rC21: “You must not accept instructions to
act in a particular matter if: ....3 there is a conflict of interest between the prospective client and one or more of your
former or existing clients in respect of the particular matter unless all of the clients who have an interest in the
particular matter give their informed consent to your acting in such circumstances.” rC25: “Where you have accepted
instructions to act but one or more of the circumstances set out in Rules C21.1 to C21.10 above then arises, you
must cease to act and return your instructions promptly.” gC37: “Rules C15 and C16 are expressed in terms of the
interests of each client. This is because you may only accept instructions to act for more than one client if you are
able to act in the best interests of each client as if that client were your only client, as CD2 requires of you.”

rC27: “Notwithstanding the provisions of Rules C25 and C26, you must not: .1 cease to act or return instructions without
either: .a obtaining your client’s consent; or .b clearly explaining to your client or your professional client the reasons for
doing so.”

(b) (2 marks)

.  You should disclose this authority to your opponent and/or in the court [rC3, gC5] (1 mark
maximum for referring to opponent, court or both)

.  Because you have a duty to draw to disclose and decision even where it is adverse to the interests
of your client [rC3, gC5] (1 mark) NOTES (for revision purposes): rC3: You owe a duty to the court to act with
independence in the interests of justice. This duty overrides any inconsistent obligations which you may have
(other than obligations under the criminal law). It includes the following specific obligations which apply whether
you are acting as an advocate or are otherwise involved in the conduct of litigation in whatever role (with the
exception of Rule C3.1 below, which applies when acting as an advocate): .1 you must not knowingly or
recklessly mislead or attempt to mislead the court; .2 you must not abuse your role as an advocate; .3 you must
take reasonable steps to avoid wasting the court’s time; .4 you must take reasonable steps to ensure that the
court has before it all relevant decisions and legislative provisions; .5 you must ensure that your ability to act
independently is not compromised. 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.” (c) Maximum 3 marks (of 4
available)

 You are entitled to withdraw from the case and return your instructions if your professional conduct
has been called into question [rC26] (1 mark)

 If you do so you must clearly explain to your client or professional client your reasons for doing so

34
 [rC27] (1 mark)

 You should speak to the clients and find out why they have accused you of incompetence. This
discussion (1 mark for any reference to finding out from the clients what the problem is and/or
seeking to solve the problem)

 You are also entitled to withdraw if the clients consent [rC26] (1 mark) NOTES (for revision
purposes): rC26: “You may cease to act on a matter on which you are instructed and return your
instructions if: .1 your professional conduct is being called into question; or 2 the client consents.”

rC27: “... you must not: .1 cease to act or return instructions without either: .a obtaining your client’s consent; or .b clearly
explaining to your client or your professional client the reasons for doing so.”

(d) Maximum 1 mark (of 2 available)

.  You should ensure that the court is made aware that you inadvertently misled it [rC3, gC4] (1
mark)

.  Because knowingly misleading the court includes inadvertently misleading the court if you later
realise that you have misled the court, and you fail to correct the position.” [gC4] (1 mark) NOTES (for revision
purposes): rC3: “You owe a duty to the court to act with independence in the interests of justice. This duty
overrides any inconsistent obligations which you may have (other than obligations under the criminal law). It
includes the following specific obligations which apply whether you are acting as an advocate or are otherwise
involved in the conduct of litigation in whatever role (with the exception of Rule C3.1 below, which applies when
acting as an advocate): .1 you must not knowingly or recklessly mislead or attempt to mislead the court.” gC4:
“Knowingly misleading the court includes inadvertently misleading the court if you later realise that you have
misled the court, and you fail to correct the position. Recklessness means being indifferent to the truth, or not
caring whether something is true or false. The duty continues to apply for the duration of the case.” SAQ 2 is on
the next page

QUESTION 2

Sanjay, a barrister, is instructed to represent Geoffrey on a charge of burglary of Geoffrey’s neighbour’s house.
Unfortunately for Geoffrey he was identified by his neighbour escaping from a window. Geoffrey made ‘no comment’ in
interview and is relying on a defence of alibi from his best friend, Spencer, who is willing to say that they were over a mile
away at Spencer’s playing on Spencer’s Xbox at the time.

On the morning of the trial, Sanjay holds another client conference with Geoffrey. At that conference, Geoffrey states that,
although he did commit the burglary, he is not going to plead guilty to it. He wants his day in court and is hoping for a
sympathetic jury.

(a) In light of his admission of guilt to you, fully explain if and to what extent you can represent Geoffrey at trial?

(5 marks)

When Geoffrey’s case is finished you get back to chambers and your clerk tells you that the following day you will be
representing another young defendant. This defendant, Jasmine Williams, is charged with burglary of her school,
Gladbury Academy. Unfortunately, you are a governor at this school, your wife is a teacher there and your two children
are pupils there, although they are a lot younger than Jasmine and have never mentioned her. Also, the burglary that
Jasmine is charged with resulted in the theft of a large quantity of computer equipment that unfortunately was not covered
by insurance. As a governor you organised a large fundraising effort which involved a ‘fun run’ through Gladbury which
received a lot of press coverage. You managed to raise enough money to replace the stolen equipment.

(b) Should you represent Jasmine? Give full reasons for your answer.

(5 marks) (10 marks in total)

ANSWERS

Please note: for parts (a) and (b) you are not expected to include the Handbook references included below in square
brackets in your answers. These are included for reference purposes.

(a) Maximum 5 marks (of 6 available).

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.  You can continue to represent Geoffrey (1 mark)

.  But you must not knowingly or recklessly mislead or attempt to mislead the court [CD1, rC3.1] (1
mark)

.  Your duty to act in the best interests of your client is subject to your duty not to mislead the court
[rGC9] (1 mark for this or for saying that your duty not to mislead the court is an overriding duty)

.  This means you will only be entitled to test the prosecution evidence [gC9] (1 mark)

.  And you cannot advance a positive case that he is not guilty [gC9] (1 mark)

.  Such as by submitting that Geoffrey did not commit the crime, that someone else committed the
crime or by calling an alibi witness (1 mark maximum for all or any of these or for another suitable
example) NOTES (for revision purposes): gC9: “Rule C3.5 makes it clear that your duty to act in the best
interests of your client is subject to your duty to the court. For example, if your client were to tell you that he had
committed the crime with which he was charged, in order to be able to ensure compliance with Rule C4 on the
one hand and Rule C3 and Rule C6 on the other: .1 you would not be entitled to disclose that information to the
court without your client’s consent; and .2 you would not be misleading the court if, after your client had entered
a plea of ‘not guilty’, you were to test in cross-examination the reliability of the evidence of the prosecution
witnesses and then address the jury to the effect that the prosecution had not succeeded in making them sure
of your client’s guilt.” gC10: “However, you would be misleading the court and would therefore be in breach of
Rules C3 and C6 if you were to set up a positive case inconsistent with the confession, as for example by: .1
suggesting to prosecution witnesses, calling your client or your witnesses to show; or submitting to the jury, that
your client did not commit the crime; or .2 suggesting that someone else had done so; or .3 putting forward an
alibi.”

(b) Maximum 5 marks (of 6 available)

.  You should not represent Jasmine (1 mark)

.  You must not accept instructions to act in a particular matter if there is a real prospect that you are
not going to be able to maintain your independence [rC21.10] (1 mark)

.  You must observe your duty to the court [CD1, rC3] (1 mark)

.  And act in the best interests of your client [CD2, rC15.1] (1 mark)

.  These duties will be put at risk if you act in circumstances where your independence is
compromised [rC3, gC73] (1 mark)

.  Here your close connection with the school and your actions to replace the stolen items will make
it very difficult for you to maintain your independence (1 mark) NOTES (for revision purposes): rC21: You must
not accept instructions to act in a particular matter if: ...10 there is a real prospect that you are not going to be
able to maintain your independence. gC73 Rule C21.10 is an aspect of your broader obligation to maintain your
independence (CD4). Your ability to perform your duty to the court (CD1) and act in the best interests of your
client (CD2) may be put at risk if you act in circumstances where

your independence is compromised. Examples of when you may not be able to maintain your independence include
appearing as an advocate in a matter in which you are likely to be called as a witness (unless the matter on which you are
likely to be called as a witness is peripheral or minor in the context of the litigation as a whole and is unlikely to lead to
your involvement in the matter being challenged at a later date). However, if you are planning to withdraw from a case
because it appears that you are likely to be a witness on a material question of fact, you should only withdraw if you can
do so without jeopardising the client’s interests.

rC3: “You owe a duty to the court to act with independence in the interests of justice. This duty ... includes the following
specific obligations ... .5 you must ensure that your ability to act independently is not compromised.”

(10 marks in total)

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