CONDUCT & ETHICS - FREQUENTLY ASKED QUESTIONS

 


 

This page provides relevant extracts from the Bar Council’s website regarding some of the more frequently asked questions re employed barristers concerning the Code of Conduct and related professional matters.  The answers - as at 5th March 2005 - appear at the end of this page or you may click on the question of interest to go direct to the Bar Council website answer.

 

For the full FAQs, please visit www.barcouncil.org.uk . If members of the Bar have particular questions about professional conduct matters that they would like to see addressed on this web page they should write to Oliver Hanmer at the Bar Council [OHanmer@BarCouncil.org.uk].

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Q1] Can I act as a Commissioner for Oaths?

*        A1] The Professional Conduct and Complaints Committee has ruled that the taking of oaths and affidavits is not a legal service and therefore, any member of the bar, whether practising or not, may act as a Commissioner for Oaths, on payment of the prescribed fee and in a case in which they are not otherwise involved, without the intervention of a solicitor.

Q2] I have been approached by a local Legal Advice Centre to attend at the Centre as a volunteer to give advice to members of the public who come along to the Centre. I am a barrister in independent practice, can I do this? 

*        A2] The Bar Council defines a Legal Advice Centre as a charitable or non-commercial organisation where legal services are offered to members of the public free of charge (or for a nominal fee) and which employs or has the services of one or more solicitors (solicitors at Legal Advice Centres must comply with paragraph 7a of the Employed Solicitors Code 1990) or which has been designated by the Bar Council as suitable for the employment or attendance of barristers.

A list of Legal Advice Centres designated by the Bar Council can be obtained from their Professional Standards Department. On the basis that the Legal Advice Centre meets the above definition, you may supply legal services at the Centre on a voluntary or part time basis and be treated, for the purposes of the Code of Conduct, as if you were employed by the Centre.

If you are employed by the Centre you can not receive, either directly or indirectly, any fee or reward for the supply of legal services to any client of the Centre other than a salary paid by the Centre. You must ensure that any fees in respect of legal services provided to clients of the Centre accrue and are paid to the Centre. Finally, you must not have any financial interest in the Centre.

Q7] I am writing an article to be published in a legal journal.  Am I able to describe myself as a barrister?  

*        A7] Yes. Whether you are a practising or a non-practising barrister, writing articles or reports on law does not amount to offering a legal service. You do not therefore need to be instructed by a professional client to write the article and can refer to yourself as a barrister. The same principle applies for lecturing in or teaching law and examining publications for libel, breach of copyright and the like. Any member of the bar can carry these out and hold themselves out as a barrister.

Q10] In the course of a conversation with opposing Counsel, I learnt information which would affect the way in which I conduct my lay client's case and gives me information to which I would not normally be privy. What should I do?

*        A10] The Code of Conduct does not recognise "Counsel to Counsel" confidentiality. If you learn something which will affect your lay client's case and which it is in their best interests to know, you should tell him and adjust the way in which you handle the case accordingly.

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Q14] I am an employed barrister working for a firm of solicitors. I have been invited to become a partner. Am I able to do so?

*        A14] The PCC has taken the view that being a partner within a firm of solicitors falls within the prohibition on offering legal services to the public through or on behalf of any other person (including a partnership firm or other corporate body) found at paragraph 205 of the Code of Conduct. You are not able therefore to be an employed barrister and a partner in a firm of solicitors.

Under the same provision of the Code, the PCC has also ruled that an employed barrister can not hold a position as a director of an incorporated practice or limited liability partnership.

Q15] I have been asked to be a non-executive director of a company.  Is this permitted under the Code of Conduct?

*        A15] For the purposes of the Code of Conduct, being a nonexecutive director does not fall within the definition of offering a legal service. A barrister can therefore be a non-executive director and give to the other directors the benefit of his learning and experience on matters of general legal principle applicable to the affairs of the company.

Any barrister who takes up such a post would not be able to act in any legal proceedings involving the company as it would be difficult to see how they could do so without his or her independence being compromised.

Q16] I have a clash of cases on the same day. Which one should I choose?

*        A16] The PCC has issued the following guidance to assist Counsel in making that decision, but you should bear in mind that it is ultimately your responsibility to decide which case is the most important for you to attend:

i) criminal cases takes precedence over civil;
ii) a part-heard case takes precedence over a new matter;
iii) a case for which a fixed date has been obtained takes precedence over a "floater"

If none of the above apply, you should, when making your decision, take into consideration such issues as the amount of work that you have done on the case, the length of time that you have been instructed on each case, each case's complexity and difficulty and, perhaps most importantly, which lay client is most likely to be most prejudiced by someone else taking the case over at short notice. In any case you should notify your instructing solicitors immediately it becomes apparent that you might not be able to conduct the case.

Q18] I have been approached to appear on a television/radio discussion programme to put forward the legal position on a particular area of the law. Can I do this?

*        A18] Yes, there is nothing in the Code of Conduct that prohibits you from discussing generally the legal standpoint on a given issue. However, you need to be careful to avoid being drawn into giving advice on a specific person's case or addressing a particular person's legal difficulty as, without being properly instructed, his might place you in breach of paragraph 401(a) of the Code.

If you have been approached to appear in the light of a particular case in which you were instructed, you should not make personal comment to the media about the case if it is still current (i.e. is still in progress or the time limit for an appeal has not been exhausted), or if to do so would breach your duty of confidentiality to your lay client without the client's consent.

Q20] I have been asked to act in a case in which the opposing client is known to me from student days. Can I accept?

*        A20] Similar considerations apply to those above and it would be sensible also to consider the judgement of the Court of Appeal in Skjevesland v Geveran [003]1AllER 1 which sets out some useful guidance on the provisions of paragraph 603(d). The answer will depend very much on the facts of each individual case, but the Court of Appeal made clear that, in that case, the connection between counsel and the individual concerned (a slight acquaintance with the wife of a party many years before) was sufficiently remote for there to be no question of any appearance of prejudice to the administration of justice.

Q21] I would like to practise as a sole practitioner. What must I do? 

*        A21] The Code of Conduct provides that, before you can practise on your own, you must have been in practice for at least 3 years following the completion of pupillage from a Chambers or office where there has been a barrister or solicitor who has been in practice for 6 years out of the last 8 and who has held full rights of audience for at least the last two years. The overwhelming majority of Chambers will have such a person.  Employed barristers who have been in practice for a number of years but who have not been in the office of a qualified person can apply to the Bar Council for a waiver.

The time includes all time spent in full-time practice after completion of a year's pupillage. Third 6 month pupillages and squatting count towards it.

If you meet these requirements, you should inform our records section of the address from which you will practise and also the BMIF. The Code of Conduct requires you to have access to adequate library facilities for your practice and to Ethics & Standards ensure that your practice is administered properly. You do not need to have a clerk. There is further guidance available in the Rules and Guidance section of the Bar Council's website.

No formal permission is required from the Bar Council in order to set up as a sole practitioner. It is, usual, however, for the Bar Council to ask a representative of the Circuit on which the Chambers is based to visit the Chambers to look at the arrangements.

Q22] May I set up Chambers with colleagues? 

*        A22] Similar rules apply to those for sole practitioners. There must be one qualified person in Chambers (ie a barrister who has been in practice for 6 years out of the last 8 and who has held full rights of audience for at least 2 years) for every three barristers who have been in practice for less than 3 years.

It would be prudent to look at the Practice Management Standards and Guidance in setting up such Chambers and to have a full constitution and arrangements for dealing with the requirements of those standards before setting up a new set.

Q23] Can I set up Chambers abroad?

*        A23] Yes, the same rules apply as for Chambers in England and Wales

Q24] Can I advertise to let people know about my new Chambers?

*        A24] Yes. The rules are set out in paragraph 710 of the Code of Conduct. Essentially, you may advertise by any means permitted by law here. You may not, however, make direct comparisons with individuals, state success rates or advertise in such a way that it is so frequent or obtrusive as to cause offence. 

If you are abroad, you should make sure that any advertising is permitted by local rules. 

Q27] An opposing solicitor has made it clear that she would like to get to know me better.  Are there any objections to me starting a relationship with her? 

*        A27] It would be very foolish to start such a relationship while any case in which you are both involved was ongoing.  Both clients would be likely to feel that there was a danger of breach of confidence or other conspiracy between you and there is likely to be a breach of paragraph 603(d) of the Code of the Conduct which prohibits you from acting where there by reason of any connection with the client, the court, or otherwise, your professional independence might be compromised or there might be prejudice or the appearance of prejudice to the administration of justice. 

While there cannot be any objection to a relationship being commenced once there is no longer any professional connection between you, the connection ought at least to be disclosed to clients in cases in which you are both instructed and, so far as possible, involvement in the same case should be avoided.

Q32] My partner is also a barrister and occasionally we are instructed on opposite sides of a case. Are we able to appear against each other?

*        A32] Paragraph 603 of the Code of Conduct provides that a barrister must not accept instructions if to do so would cause him to be professionally embarrassed and sets out circumstances in which a barrister may be professionally embarrassed. In particular, paragraph 603(d) provides that a barrister will be professionally embarrassed inter alia if the matter is one in which he has reason to believe that whether by reason of any connection with the client or with the Court or a member of it or otherwise it will be difficult for him to maintain professional independence or the administration of justice might be or appear to be prejudiced.

Paragraph (e) provides if there is or appears to be a conflict or risk of conflict either between the interests of the barrister and some other person or between the interests of the barrister and some other person or between the interests of any one or more clients (unless all relevant persons consent to the barrister accepting the instructions).

The Court of Appeal in the case of R v Batte (TLR 30 May 1996) said that it was same criminal matter since it might give rise to an apprehension that the proper conduct of the case had been in some way affected by that personal relationship.

Before accepting instructions in any case in which there is any relationship between himself and other counsel or any other party in the case or connected with the case, a barrister should consider whether that relationship might give rise to an apprehension that the proper conduct of the case had been in some way affected and to bear in mind that there will be some cases where the risk of such an apprehension cannot be averted by obtaining the consent of all parties in the case.

In a criminal case a barrister should also consider the comments of the Court of Appeal in R v Batte.

Q33] I have represented a client in a matter. He is now seeking to take the matter further as a litigant-in-person and has asked to see my notebooks, citing the provisions of the Data Protection Act. Am I required to let him see them?

*        A33] The PCC has considered this matter recently and has taken the view that Counsel should provide a client with copies of any notes taken as part of the conduct of the hearing. This would cover the notes taken in court of the proceedings and any notes of the judge’s ruling or comments. The PCC was of the view that Counsel is not obliged by the Code to provide copies of his or her preparation for the case including any notes made that were other than a record of the proceedings.

We cannot advise on the provisions of the Data Protection Act 1998 (“DPA”) in relation to the request for disclosure of the notes in Counsel’s note book. Counsel will have to take a view on those provisions him- or herself. It may well be arguable that the information therein does not satisfy the definition of data in section 1 of the DPA.

Q34] A friend has asked me for some legal advice. Am I able to help? 

*        A34] The Code allows you to give free legal advice to friends and relations without instructions from a solicitor even though you have not completed the public access training. You should bear in mind that this is limited to advice and does not cover representation.  If you wish to go further you will need to be instructed by a solicitor or undertake the training of public access.  In particular, you should not:

*        correspond with the other side on your friend's behalf (though you could draft letters for him to sign);

Barristers should consider paragraph 603(d) of the Code and whether their connection with the client is so close that they might it difficult to maintain their own professional independence or the administration of justice might be or appear to be prejudiced.  Clearly, the more serious the matter, the more likely it is that the barrister will find it difficult to advise as independently as someone not connected with the client.

Q35] I am in litigation and wish to represent myself.  May I do so?

*        A35] You have the same right as every other citizen to act as a litigant in person. What you may not do is appear as a barrister in your own cause.

Q41] My client arrives at the conference and says that he wishes to tape record it.  Can I refuse to permit him to do so?

*        A41] Yes. The request at least implies that the normal trust between counsel and client is lacking and you may wish to suggest that the client consider instructing somebody else.

Q48] I have been instructed to appear in a part-heard case in which my lay client has previously been representing himself.  May I do so?

*        A48] Yes - indeed, assuming that you are available and competent to do the case, you are required to do so by the "Cab-rank" rule.  You will obviously have difficulties in dealing with the case properly and you may wish to consider whether it is in your client's interests to apply for the case to be started afresh - but that will apply to any other member of the Bar.

Q49] My instructing solicitors have passed to me a document that they have received anonymously which appears to belong to the other side and to be privileged. 

a) What should I do?

b) What if I have already read it before realising there was a problem and find that it's very helpful to my client?

c) But the case begins tomorrow and nobody else can possibly get it up in time.

*        A49](a)The guidance for this is in the Written Standards in Part 3 of the Code at paragraph 7.  You should not read the document and return the document to the other side.

(b) Again you should return it and withdraw from the case.

(c) Stay in the case and inform your opponent that you have the document and intend to use it.  Let the other side decide whether to make any application to the court.