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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.
…
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.
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