Ethics – Practice Q/As – 1st Class Law Notes

1. Leon Grimes is a gay male barrister who is instructed to defend Carl Jackson, who is charged with racially aggravated assault and battery. During their initial conference Carl spots Leon’s civil partnership ring and asks him when he got married. Leon corrects him by saying that he is in a civil partnership. Carl becomes agitated and tells Leon that he is uncomfortable with a gay barrister representing him as he thinks that gay people are “disgusting” and that civil partnerships are “blasphemy”. Leon is so shocked at Carl’s words and attitude that he no longer wishes to act for him.

Can Leon withdraw from the case due to Carl’s behaviour? Give full reasons for your answer.

601. A barrister who supplies advocacy services must not withhold those services:

(a) on the ground that the nature of the case is objectionable to him or to any section of the public;

(b) on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him or to any section of the public

(c) 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 (for example, on the ground that such support will be available as part of the Community Legal Service or Criminal Defence Service)

2. You are representing a client accused of aggravated arson in pushing burning rags through his ex-wife’s letterbox. Your defence hinges on the assertion that, at the time of the crime, your client was watching a football match at his friend’s house. In conference with your client the morning just before his trial he confides in you that he did indeed push the rags through the letterbox. However he is adamant that he wishes to persist in his not guilty plea.

Which ONE of the following statements is CORRECT?

[A] You absolutely cannot represent the client as a barrister is not permitted to defend a client who admits his guilt under any circumstances, as this contravenes your duty not to mislead the court.

[B] You may continue to represent the client at trial but, under the Code, you are prohibited from calling a client who has admitted his guilt to give any evidence at his trial.

[C] You may continue to represent the client and he can be called to give evidence, but in his defence anything which you know to be untrue (in particular the alibi) cannot be asserted or suggested to the court.

[D] You must continue to represent the client at court as his statement is covered by client confidentiality and the “cab rank” rule prevents you from withdrawing from the case.

ANSWER C

12.1 In considering the duty of counsel retained to defend a person charged with an offence who confesses to his counsel that he did commit the offence charged, it is essential to bear the following points clearly in mind:

(a) that every punishable crime is a breach of common or statute law committed by a person of sound mind and understanding;

(b) that the issue in a criminal trial is always whether the defendant is guilty of the offence charged, never whether he is innocent;

12.2 A person charged with a crime has confessed to his counsel that he did commit the offence charged is no bar to that barrister appearing or continuing to appear in his defence, nor indeed does such a confession release the barrister from his imperative duty to do all that he honourably can for his client.

12.3 Such a confession, however, imposes very strict limitations on the conduct of the defence. a barrister must not assert as true that which he knows to be false. He must not connive at, much less attempt to substantiate, a fraud.

12.4 While, therefore, it would be right to take any objections to the competency of the Court, to the form of the indictment, to the admissibility of any evidence or to the evidence admitted, it would be wrong to suggest that some other person had committed the offence charged, or to call any evidence which the barrister must know to be false having regard to the confession, such, for instance, as evidence in support of an alibi. In other words, a barrister must not (whether by calling the defendant or otherwise) set up an affirmative case inconsistent with the confession made to him.

12.5 A more difficult question is within what limits may counsel attack the evidence for the prosecution either by cross-examination or in his speech to the tribunal charged with the decision of the facts. No clearer rule can be laid down than this, that he is entitled to test the evidence given by each individual witness and to argue that the evidence taken as a whole is insufficient to amount to proof that the defendant is guilty of the offence charged. Further than this he ought not to go.

3. You are representing a client who has been charged under s.20 Offences Against the Person Act 1868. He was allegedly involved in a very serious brawl in Sunderland City Centre where a man was stabbed during an altercation with two brothers (one of whom is your client). The victim was unable to identify the assailant but a witness who only had a fleeting glance of the fracas in a passing car did identify your client as the stabber. In conference your client breaks down and admits he did not in fact commit the offence yet he wants to plead guilty.

Answer both of the following questions.

(a) At the conference, according to the Written Standards for the Conduct of Professional Work, what advice should you give the client? (5 marks)

11.5.1 Where a defendant tells his counsel that he did not commit the offence with which he is charged but nevertheless insists on pleading guilty to it for reasons of his own, counsel should:

(a)advise the defendant that, if he is not guilty, he should plead not guilty but that the decision is one for the defendant; counsel must continue to represent him but only after he has advised what the consequences will be and that what can be submitted in mitigation can only be on the basis that the client is guilty;

(b)explore with the defendant why he wishes to plead guilty to a charge which he says he did not commit and whether any steps could be taken which would enable him to enter a plea of not guilty in accordance with his profession of innocence.

(b) On the assumption that you give full and correct advice according to the Written Standards and that the client persists in his wish to enter a guilty plea, can you continue to represent the client and what further steps should be taken? (5 marks)

11.5.2 If the client maintains his wish to plead guilty, he should be further advised:

(a) what the consequences will be, in particular in gaining or adding to a criminal record and that it is unlikely that a conviction based on such a plea would be overturned on appeal;

(b) that what can be submitted on his behalf in mitigation can only be on the basis that he is guilty and will otherwise be strictly limited so that, for instance, counsel will not be able to assert that the defendant has shown remorse through his guilty plea.

11.5.3 If, following all of the above advice, the defendant persists in his decision to plead guilty

(a) counsel may continue to represent him if he is satisfied that it is proper to do so;

(b) before a plea of guilty is entered counsel or a representative of his professional client who is present should record in writing the reasons for the plea;

(c) the defendant should be invited to endorse a declaration that he has given unequivocal instructions of his own free will that he intends to plead guilty even though he maintains that he did not commit the offence(s) and that he understands the advice given by counsel and in particular the restrictions placed on counsel in mitigating and the consequences to himself; the defendant should also be advised that he is under no obligation to sign; and

(d) if no such declaration is signed, counsel should make a contemporaneous note of his advice.

4. You are conducting the prosecution of a man accused of a number of rapes. The case has attracted a lot of media attention. During the course of the trial you are invited to comment on how the case is progressing by a TV journalist camped outside the Crown Court.

Which ONE of the following statements is CORRECT?

[A] It is permissible to freely comment on your conduct of the case and to give your opinion on how you think it is going.

[B] It is permissible to comment on your conduct of the case but only if the journalist promises to delay broadcast until after the trial.

[C] It is permissible to comment on the case but you should restrict yourself to a discussion of the facts, not offer any opinion on how the trial is progressing.

[D] It is not permissible to discuss the case at all with the journalist.

ANSWER C

709.1 A barrister must not in relation to any anticipated or current proceedings or mediation1 in which he is briefed or expects to appear or has appeared as an advocate express a personal opinion to the press or other media or in any other public statement upon the facts or issues arising in the proceedings

709.2 Paragraph 709.1 shall not prevent the expression of such an opinion on an issue in an educational or academic context.

5. You are conducting a plea in mitigation for a client who has pleaded guilty to burglary. Obviously impressed with your submission the judge passes a very lenient sentence which, under a recent Act of Parliament, is no longer lawful. Counsel for the prosecution seems oblivious to the mistake.

Which ONE of the following statements is CORRECT?

[A] You are under no duty to correct the learned judge. Your client has received a lenient sentence so, as his interests are paramount, you should do nothing at all.

[B] You are under no duty to correct the learned judge but must inform the Attorney General’s office so that it can lodge an appeal against the unduly lenient sentence.

[C] You should quietly inform the prosecution of the judge’s error, but if they do not raise the matter with the judge then your duty is discharged and no further action need be taken.

[D] You must respectfully inform the judge of his error so he may pass a lawful sentence on your client, even though this would be harsher than that already imposed, and would be against your lay client’s interests.

ANSWER D

708. A barrister when conducting proceedings in Court:

(a) is personally responsible for the conduct and presentation of his case and must exercise personal judgement upon the substance and purpose of statements made and questions asked;

(b) must not unless invited to do so by the Court or when appearing before a tribunal where it is his duty to do so assert a personal opinion of the facts or the law;

(c) must ensure that the Court is informed of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues;

(d) must bring any procedural irregularity to the attention of the Court during the hearing and not reserve such matter to be raised on appeal;

(e) must not adduce evidence obtained otherwise than from or through the client or devise facts which will assist in advancing the lay client’s case;

(f) must not make a submission which he does not consider to be properly arguable;

(g) must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person;

(h) must if possible avoid the naming in open Court of third parties whose character would thereby be impugned;

(i) must not by assertion in a speech impugn a witness whom he has had an opportunity to cross-examine unless in cross-examination he has given the witness an opportunity to answer the allegation;

(j) must not suggest that a victim, witness or other person is guilty of crime, fraud or misconduct or make any defamatory aspersion on the conduct of any other person or attribute to another person the crime or conduct of which his lay client is accused unless such allegations go to a matter in issue (including the credibility of the witness) which is material to the lay client’s case and appear to him to be supported by reasonable grounds.

SPS 1 SUP

1. You are a first-six pupil in a prestigious London set of chambers, 29 Chapel Close. You are finding it difficult to make ends meet so take a part-time job as a bartender in a pub not far from the Royal Courts of Justice, working from 8pm until 12:30am Mondays, Wednesdays and Fridays. This has often meant staying up virtually all night to complete work given to you by your pupil supervisor. One night while working there you are introduced to a solicitor acquaintance of a friend who comments that they have seen you occasionally making your way to court. Eager to impress this person you casually mention that you are a member of 29 Chapel Close chambers.

Have you contravened the Code at all?

301. A barrister must have regard to paragraph 104 and must not:

(a) engage in conduct whether in pursuit of his profession or otherwise which is:

(i) dishonest or otherwise discreditable to a barrister;

(ii) prejudicial to the administration of justice; or

(iii) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;

(b) engage directly or indirectly in any occupation if his association with that occupation may adversely affect the reputation of the Bar or in the case of a practising barrister prejudice his ability to attend properly to his practice.

2. You are acting for a client in a contractual claim. You receive instructions to write an opinion on liability and evidence. While reading the papers it is clear to you that instructing solicitors appear to have been negligent in their conduct of the case. You come to the conclusion that the lay client’s best interests would be served by changing solicitors.

Which ONE of the following statements is CORRECT?

[A] As your primary duty is to your professional client you should remain silent on the issue in your opinion and should not tell the lay client of your opinion that they should change solicitors.

[B] As you cannot, under any circumstances, contact the lay client directly, you should include your full advice in your opinion and must hope that those instructing pass on your advice to the lay client.

[C] Although normally you should not contact the lay client directly, it would be permissible to send your opinion to them directly if you think the instructing solicitors would not pass on your advice in full to the lay client.

[D] You must return the instructions immediately as this represents a conflict of interest.

ANSWER C

703. If a self-employed barrister forms the view that there is a conflict of interest between his lay client and a professional client or other intermediary (for example because he considers that the intermediary may have been negligent) he must consider whether it would be in the lay client’s interest to instruct another professional adviser or representative and, if he considers that it would be, the barrister must so advise and take such steps as he considers necessary to ensure that his advice is communicated to the lay client (if necessary by sending a copy of his advice in writing directly to the lay client as well as to the intermediary).

3. You have been in practice for 7 years and have received a letter from a company called “Achilles Advertising” stating that for a fee of £400 they will advertise your services on the internet. They offer what appears to be a remarkably professional service for a very economical price.

They have said that they will:

• Create a web page for you on their server and for each ‘hit’ (when a person accesses the web page) they will charge you 20p

• Ensure that there are links with all legal web sites and that your curriculum vitae will be posted on legal bulletin boards

• Ensure that the services you offer will be advertised as pop-ups on various legal websites

Would all of Achilles’ ideas for advertising your services be permissible under the Code? Are there any other constraints imposed by the Code on advertising barristers’ services

710.1 Subject to paragraph 710.2 a barrister may engage in any advertising or promotion in connection with his practice which conforms to the British Codes of Advertising and Sales Promotion and such advertising or promotion may include:

(a) photographs or other illustrations of the barrister;

(b) statements of rates and methods of charging;

(d) information about any case in which the barrister has appeared (including the name of any client for whom the barrister acted) where such information has already become publicly available or, where it has not already become publicly available, with the express prior written consent of the lay client.

710.2 Advertising or promotion must not:

(a) be inaccurate or likely to mislead;

(b) be likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;

(c) make direct comparisons in terms of quality with or criticisms of other identifiable persons (whether they be barristers or members of any other profession);

(d) include statements about the barrister’s success rate;

(e) indicate or imply any willingness to accept instructions or any intention to restrict the persons from whom instructions may be accepted otherwise than in accordance with this Code;

(f) be so frequent or obtrusive as to cause annoyance to those to whom it is directed.

SPS 2

1. You are representing a client charged with burglary in a bail application to the Newcastle Magistrates’ Court. In conference prior to the application the client reveals two previous domestic burglary offences as well as a conviction for absconding. On arrival at the courtroom shortly prior to the application, it becomes apparent that the prosecution are unaware of these convictions as they do not appear on the antecedents sheet. You quickly consult with your client who tells you that he does not want the convictions disclosed if the court is unaware of them. What should you do?

Give full reasons from the Code or any guidance you have found for your answers.

Answer:

The counsel is not under a duty to reveal previous convictions to the prosecution or the court, but nor should counsel withdraw if his client refuses to reveal the convictions. In circumstances where counsel is aware of previous convictions, regardless of the nature of the case or potential sentence, counsel should give the defendant clear advice as to all the options. He should:

Inform the defendant that the information as to the previous conviction will remain confidential unless the client specifically waives privilege;
Inform the defendant that whilst the information remains confidential, he will be restricted in what he can say in mitigation;
Advise the defendant that nothing can be said as to the defendant’s record which expressly or impliedly adopts the position as outlined by the prosecution and in particular, that nothing can be said as to:

(a) the absence of convictions of the type or gravity of the undisclosed conviction;

(b) a period of time as being free from convictions if the undisclosed conviction occurred during that period;

(c) the absence of a particular sentence or disposal in the defendant’s antecedents if such sentence or disposal was in fact imposed in respect of the undisclosed conviction; or

(d) an apparently good character of the defendant.

Specifically advise the defendant as to the nature of the sentencing exercise if the court became aware of the undisclosed conviction, whether by virtue of the defendant’s voluntary disclosure or by some other means.
Specifically advise the defendant as to the consequences of a mandatory life sentence under section 2 of the 1997 Act, and the process of fixing a specified period under section 28 of that Act;
Further advise him as to the release provisions and the licence provisions;
Specifically consider and advise the defendant in relation to the issue of “exceptional circumstances”;
Advise the defendant as to the possibility of the prosecution subsequently discovering the undisclosed conviction;
Advise of the real possibility that failure of counsel to refer to the defendant’s antecedents would not go unnoticed by experienced prosecution counsel or judge. This could lead to an adjournment, to the matter being relisted for alteration of the sentence, or to a reference by the Attorney General under section 36 of the Criminal Justice Act 1998.
Advise that so long as the conviction remains undiscovered, the mandatory sentencing provisions will not operate, but that if any of the above events occur, sentencing will take place in accordance with those revisions.

The defendant should be told that the choice as to what course to adopt is his, but that if he decides to reveal the qualifying conviction, he would be entitled to expect significant credit from the court in fixing the specified period.

2. You have been instructed to advise in writing on quantum in a personal injury claim. In their instructions the solicitors inform you that they have advised the client to settle the case for £5,000 and ask you to confirm that this is the most the client will receive at trial. Having read the brief you have come to the conclusion that the client has a very good chance of success and at court would be likely to award the client damages in the region of £15,000, as well as costs.

Which ONE of the following CORRECTLY represents the amount of likely damages you should include in your opinion?

[A] £5,000 as this is what you have been instructed to do. As a matter of ethics you cannot go against the instructions of your solicitor.

[B] £10,000 as this is a compromise amount between what you think the client will receive and the estimate of the solicitors.

[C] £15,000 as this is your opinion as to what the client will receive.

[D] As you cannot agree with your solicitors you must return the instructions as you are “professionally embarrassed”.

Answer C

303. A barrister:

(a) must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person (including any colleague, professional client or other intermediary or another barrister, the barrister’s employer or any Authorised Body of which the barrister may be an owner or manager);

(b) owes his primary duty as between the lay client and any other person to the lay client and must not permit any other person to limit his discretion as to how the interests of the lay client can best be served;

(c) when supplying legal services funded by the Legal Services Commission as part of the Community Legal Service or the Criminal Defence Service owes his primary duty to the lay client subject only to compliance with paragraph 304.

304. A barrister who supplies legal services funded by the Legal Services Commission as part of the Community Legal Service or the Criminal Defence Service must in connection with the supply of such services comply with any duty imposed on him by or under the Access to Justice Act 1999 or any regulations or code in effect under that Act and in particular with the duties set out in Annex E.

306. A barrister is individually and personally responsible for his own conduct and for his professional work: he must exercise his own personal judgement in all his professional activities.

5.1 A barrister must at all times promote and protect fearlessly and by all proper and lawful means his lay client’s best interests.

5.2 A barrister must assist the Court in the administration of justice and, as part of this obligation and the obligation to use only proper and lawful means to promote and protect the interests of his client, must not deceive or knowingly or recklessly mislead the Court.

5.3 A barrister is at all times individually and personally responsible for his own conduct and for his professional work both in Court and out of Court.

3. It is 21st August. A tenant in your chambers has been taken ill and is going to be off work for some time. You have been asked to take over from him as junior to the prosecution in a three week murder trial. The trial is due to commence on 25th September.

You are currently instructed on behalf of a defendant charged with burglary. The Plea and Case Management Hearing took place last week and the trial has been listed for two days, commencing on 26th September.

You would like to return the burglary so that you can take the murder case.

Which ONE of the following statements is CORRECT?

[A] You are obliged to return the burglary trial and to accept instructions in the murder case because murder is a more serious offence and it is more important for it to be properly prosecuted.

[B] You must refuse the brief in the murder case because you would be instructed on behalf of the prosecution. The burglary is a defence brief and it therefore takes priority.

[C] You must refuse the brief in the murder case because you have already accepted instructions in the burglary case and a date has already been fixed for the trial.

[D] You should speak to the solicitor who instructs you in the burglary case. If he is willing to release you from your obligations to his client, you can accept the brief in the murder case.

ANSWER C

603. A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:

(a) if he lacks sufficient experience or competence to handle the matter;

(b) if having regard to his other professional commitments he will be unable to do or will not have adequate time and opportunity to prepare that which he is required to do;

(c) if the instructions seek to limit the ordinary authority or discretion of a barrister in the conduct of proceedings in Court or to require a barrister to act otherwise than in conformity with law or with the provisions of this Code;

(d) if the matter is one in which he has reason to believe that he is likely to be a witness or in which 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;

(e) 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 any one or more clients (unless all relevant persons consent to the barrister accepting the instructions);

(f) if there is a significant risk that information confidential to another client or former client might be communicated to or used for the benefit of anyone other than that client or former client without their consent;

(h) If the barrister is instructed by or on behalf of a lay client who has not also instructed a solicitor or other professional client, and if the barrister is satisfied that it is in the interests of the client or in the interests of justice for the lay client to instruct a solicitor or other professional client.

610. A barrister must not:

(a) cease to act or return instructions without having first explained to the client his reasons for doing so;

(b) return instructions to another barrister without the consent of the client;

(c) return a brief which he has accepted and for which a fixed date has been obtained or (except with the consent of the lay client and where appropriate the Court) break any other engagement to supply legal services in the course of his practice so as to enable him to attend or fulfil an engagement (including a social or non-professional engagement) of any other kind;

(d) except as provided in paragraph 608 return any instructions or withdraw from a case in such a way or in such circumstances that the client may be unable to find other legal assistance in time to prevent prejudice being suffered by the client.

4.1 When a barrister has accepted a brief for the defence of a person charged with a serious criminal offence, he should so far as reasonably practicable ensure that the risk of a conflicting professional engagement does not arise.

4. You have been asked to represent a client at trial on a charge of assault occasioning actual bodily harm. In conference, the client has asked that he is given help on what he should say and how it should be said. The client also says that he has never been in court before and is somewhat apprehensive about what will happen in court.

(i) What should you do in relation to the request from your client to advise him on what to say and how it should be said? (2 marks)

705. A barrister must not:

(a) rehearse practise or coach a witness in relation to his evidence;

(b) encourage a witness to give evidence which is untruthful or which is not the whole truth;

(c) except with the consent of the representative for the opposing side or of the Court, communicate directly or indirectly about a case with any witness, whether or not the witness is his lay client, once that witness has begun to give evidence until the evidence of that witness has been concluded.

(ii) What help are you permitted to give the client in relation to his being apprehensive about what will happen at court? (2 marks)

6.1.2 There is no longer any rule which prevents a barrister from having contact with any witness.

6.1.3 In particular, there is no longer any rule in any case (including contested cases in the Crown Court) which prevents a barrister from having contact with a witness whom he may expect to call and examine in chief, with a view to introducing himself to the witness, explaining the court’s procedure (and in particular the procedure for giving evidence), and answering any questions on procedure which the witness may have.

6.1.4 It is a responsibility of a barrister, especially when the witness is nervous, vulnerable or apparently the victim of criminal or similar conduct, to ensure that those facing unfamiliar court procedures are put as much at ease as possible.

6.1.5 Unless otherwise directed by the Court or with the consent of the representative for the opposing side or of the Court, a barrister should not communicate directly or indirectly about the case with any witness, whether or not the witness is his lay client, once that witness has begun to give evidence until it has been concluded.

5. You have recently become a tenant. A friend of yours has been charged with dangerous driving. He has received advice from his solicitor but is not very happy as to what he has been told. While having a drink in the pub he asks you for advice and whether you can represent him in the case if he sacks his solicitors.

Assuming you have had no public access training, which ONE of the following statements is CORRECT?

[A] You are free to give your friend any advice you see fit and as long as he informs the solicitor you can take over the case from them.

[B] You are free to give advice but cannot represent him in court as barristers are not allowed to be advocates for friends or family.

[C] You are free to give advice but can only represent him in court should you be so instructed by solicitors with conduct of the case.

[D] You can neither give your friend any advice nor represent him, as acting in any capacity for a friend represents a conflict of interest under the Code

ANSWER C

FAQ 5: You are unable to give legal advice or representation to a lay client without proper instruction from a solicitor, unless you are able to undertake work under the Public Access scheme and comply with the requirements for accepting such work. It is also generally not a good idea to enter into drawn out correspondence with a former client over events that occurred at court.

There is no requirement for you to provide any factual information about the hearing but you may do so should you wish. The most appropriate way to respond is usually to write to the client advising that you cannot offer any legal advice and suggesting that he contact a new solicitor. You should also explain that you will not be able to respond to any further communications.

SPS 2 SUP

1. You are representing a client on a charge of burglary at Newcastle Magistrates’ Court. Your client has started giving evidence and during a short adjournment he asks you about the case.

Consider the following propositions:

(i) He is your own witness so you can discuss the case with him whenever the need arises.

(ii) You can only discuss the case with your client when he has finished giving his evidence.

(iii) You cannot discuss the case with your client at all until the trial is concluded.

Which of the above propositions is correct?

[A] (i) only

[B] (ii) only

[C] (iii) only

[D] None of them

ANSWER (ii)

705. A barrister must not:

2. You are a newly qualified barrister embarking on establishing a successful civil practice. A friend of your father is a partner in a solicitor’s firm who routinely gives you work. One evening while socialising with this solicitor you mention that you are having trouble getting certain other solicitors to pay you quickly for work done and that, although you are owed a tidy sum for such work, currently you are finding it a little difficult to make ends meet until you are paid. You father’s friend offers to give you quite a lucrative brief involving a contractual dispute and also offers to give you £500 “as a favour to the old man”.

Which ONE of the following CORRECTLY describes the position under the Code? Assume you have sufficient expertise and time to deal with the contractual case properly.

[A] As the money will be coming from a friend of the family there is no stipulation forbidding acceptance of such a gift. You would also be permitted to accept the brief.

[B] You are permitted to accept the money, but only in the form of a loan, and you are also permitted to accept the brief.

[C] You are not permitted to accept the money, but are permitted to accept the brief.

[D] You are not permitted to accept the money, nor are you permitted to accept the brief.

ANSWER C

307. A barrister must not:

(a) permit his absolute independence integrity and freedom from external pressures to be compromised;

(b) do anything (for example accept a present) in such circumstances as may lead to any inference that his independence may be compromised;

(c) compromise his professional standards in order to please his client the Court or a third party, including any mediator ;

(d) give a commission or present (save for small promotional items ) or lend any money for any professional purpose to or (save as a remuneration in accordance with the provisions of this Code) accept any money by way of loan or otherwise from any client or any person entitled to instruct him as an intermediary;

(e) make any payment (other than a payment for advertising or publicity permitted by this Code or in the case of a self-employed barrister remuneration paid to any clerk or other employee or staff of his chambers) to any person for the purpose of procuring professional instructions

3. Consider the following propositions:

(i) A barrister must be courteous in his professional activities.

(ii) A barrister must never suggest that a witness is guilty of a crime.

(iii) A barrister may refuse instructions if the fee offered is not proper given his experience and seniority.

Which of the above is not stipulated in the Code of Conduct?

[A] (i) only

[B] (ii) only

[C] (iii) only

[D] All of them.

ANSWER (ii)

708. A barrister when conducting proceedings in Court:

5.5 A barrister must at all times be courteous to the Court and to all those with whom he has professional dealings.

604. a self-employed barrister is not obliged to accept instructions:

(a) requiring him to do anything other than during the course of his ordinary working year;

(b) other than at a fee which is proper having regard to:

(i) the complexity length and difficulty of the case;

(ii) his ability experience and seniority; and

(iii) the expenses which he will incur;

SPS 3

1. You recently moved out of your home while building work was carried out. The work included the erection of a single brick garage, which on oral agreement was supposed to be 2.75 metres wide. The builders have made a mistake and have built a garage that is 2 metres wide, which is not wide enough to fit your car. They are refusing to correct their mistake and are demanding payment in full. You decide to write them a letter outlining the legal position as you believe it to be.

Are there any constraints on the content and/or form of any such letter?

FAQ 3: Members of the Bar should not attempt to gain an advantage or put any pressure on other people by virtue of their position as barristers. It would not be appropriate for barristers to use their status as an implied threat to those with whom they are in dispute. Using Chambers’ notepaper in correspondence about a personal dispute or when conducting personal business could well constitute an implied threat and leave the barrister open to a justified complaint of professional misconduct. Thought should also be given as to whether the use of an email address identifying chambers in the context of such a dispute might also contain an implied threat.

2. You are acting for the father in a child residence and contact dispute. During a conference with your client he clearly states in reference to his former partner, “If I don’t get custody of my boy she will never see him again”.

What, if anything, should you do?

FAQ 13: The view of the Professional Practice Committee is that you should first satisfy yourself that the threat is genuine. If you are satisfied, paragraph 702 of the Code of Conduct allows a barrister to breach his duty of confidentiality “as permitted by law”; broadly, the law permits you to do so where there is a danger of harm to a third party. In such circumstances a barrister should report the threat to the police or other agency (such as the local authority social services department) able to take appropriate protective measures. This subject is also covered in more detail in the guidance document: Disclosure of Unhelpful Material Disclosed to Counsel in Family Proceedings. If you are in any doubt you should contact the Ethical Enquiries Line.

3. James is prosecuting a Defendant convicted of robbery following a guilty plea. According to guidance issued by the Sentencing Council in cases of this level of gravity, the sentence should range between 6 and 9 years in custody (before the reduction for a guilty plea is taken into account). James brings this guidance to the attention of the court.

In mitigation the Defendant’s counsel asserts that the Defendant was unarmed. According to the brief and in particular the witness statements the prosecution’s contention is that the Defendant threatened the victim with a screwdriver. James had neglected to bring this to the court’s attention earlier when making his initial representations as to sentence. James neglects to seek to address the point after the defence has finished the plea in mitigation, partly due to his embarrassment at not raising it earlier and partly in order to save the court’s time and expense in investigating the matter further.

The judge subsequently indicates to the court that he is minded to impose 7 years in custody and he invites further representations from counsel. James responds by stating categorically that the sentence should be at the very maximum of the relevant range, namely 9 years, due to the “utterly abhorrent and bestial threats of violence made by the defendant, such as should provoke disgust and revulsion in any morally upstanding human being, including those in this courtroom”. He also takes the opportunity to suggest to the court that £2,000 should be paid as compensation to the victim.

Meanwhile, Adam is a barrister employed by the Crown prosecution service (CPS). He is considering a case in which a Defendant has been charged with an offence of causing grievous bodily harm with intent contrary to s.18 of the Offences Against the Person Act 1861. On the evidence as presented Adam is confident that a less serious charge of unlawful wounding under s. 20 of the same Act would be more appropriate. However he decides that it would be tactically astute to persist with the s.18 charge, as by doing this he hopes to entice the Defendant subsequently to offer a plea to the lesser offence.

Give full reasons for all of your answers with reference to the Code or any other guidance to which you have referred. ([Note to students the Guidance referred to is fictitious, but assume for the purposes of this question it exists and is accurately represented in the question).

(i) Identify which of James’ representations made to the court on sentence and compensation were permissible and which, if any, were not. (4 marks)

10.1 Prosecuting counsel should not attempt to obtain a conviction by all means at his command. He should not regard himself as appearing for a party. He should lay before the Court fairly and impartially the whole of the facts which comprise the case for the prosecution and should assist the Court on all matters of law applicable to the case.

10.8 In relation to sentence, prosecuting counsel:

(a) should not attempt by advocacy to influence the Court with regard to sentence: if, however, a defendant is unrepresented it is proper to inform the Court of any mitigating circumstances about which counsel is instructed;

(b) should be in a position to assist the Court if requested as to any statutory provisions relevant to the offence or the offender and as to any relevant guidelines as to sentence laid down by the Court of Appeal;

(c) should bring any such matters as are referred to in (b) above to the attention of the Court if in the opinion of prosecuting counsel the Court has erred;

(d) should bring to the attention of the Court any appropriate compensation, forfeiture and restitution matters which may arise on conviction, for example pursuant to sections 35-42 of the Powers of Criminal Courts Act 1973 and the Drug Trafficking Offences Act 1986.

(ii) What action, if any, should James have taken in relation to the prosecution assertion that the Defendant was armed with a screwdriver. (2 marks)

10.2 Prosecuting counsel should bear in mind at all times whilst he is instructed:

(i) that he is responsible for the presentation and general conduct of the case;

(ii) that he should use his best endeavours to ensure that all evidence or material that ought properly to be made available is either presented by the prosecution or disclosed to the defence.

10.8 In relation to sentence, prosecuting counsel:

e) should draw the attention of the defence to any assertion of material fact made in mitigation which the prosecution believes to be untrue: if the defence persist in that assertion, prosecuting counsel should invite the Court to consider requiring the issue to be determined by the calling of evidence in accordance with the decision of the Court of Appeal in R v Newton

(iii) In relation to Adam’s decision to charge a Defendant under s. 18 of the Offences Against The Persons Act 1861, is this course of action permissible? (2 marks)

The code for Crown Prosecutors: prosecution should select an appropriate charge reflecting the seriousness of the offence. They should never go ahead with a charge simply to entice the Defendant to plea.

4. Fred Johnstone has just been informed that he is to be offered a tenancy and decides to celebrate with a good night out. After imbibing quite a lot of alcohol he decides to take a trip to a local night-club, favoured by the legal and publishing community in the city. Unfortunately for Fred the door operatives take the view that he has already had enough excitement for one night. Fred disagrees and causes a fracas. The police attend and Fred is arrested while attempting to run away from the scene clutching one of the door operative’s caps as a memento. In the event the police let Fred off with a caution. A local journalist has witnessed the entire scene and has informed Fred’s Head of Chambers who has asked the Bar Standards Board (BSB) merely for advice at this stage.

Which ONE of the following is CORRECT?

[A] As Fred has escaped criminal conviction the unfortunate matter can be forgotten about and he need not respond to any further interest shown by the BSB in the matter.

[B] Fred is under an obligation to report the matter to the BSB himself in the hope that this confession will be powerful mitigation of any punishment he attracts.

[C] What Fred does in his private life is his business and has no bearing upon his professional life. Therefore he does not need to report any matter to the BSB nor respond to any enquiries made by them about it.

[D] Although Fred’s behaviour has been rather unfortunate he is not under an obligation to report the matter to the BSB himself. However, in the event he is asked for a formal response from the Bar Council he must provide one promptly.

ANSWER D

301. A barrister must not:

(a) engage in conduct whether in pursuit of his profession or otherwise which is:

(iii) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

905. A barrister must:

Respond promptly to any requirement from the Bar Council or Bar Standards Board for comments on or documents relating to the arrangements made for administering his practice and chambers or office whether or not any complaint has been received or raised arising out of those arrangements;

Where a complaint about a barrister has been made to or by the Bar Standards Board, or where the Bar Standards Board has reasonable grounds for believing that a breach of this Code may have occurred or is about to occur, or where a circumstance referred to in sub-paragraph (b) or (c) above has been reported to the Bar Standards Board, respond promptly to any request from the Bar Standards Board for comments or information on the matter whether it relates to him or to another barrister.

5. You are defending a company who owns a tin manufacturing plant in a personal injury case involving one of its own employees. This employee broke his ankle badly after slipping on some spilled oil on the factory floor. Hitherto your client maintained that the spillage had occurred but seconds before the employee slipped and so there was no chance to clean it up. The employee maintains that it had been there some hours and another employee had complained about it to his line manager who promised it would be cleared forthwith. Disclosure of documents has already taken place and you are but a mere week from the first day of the trial. In the trial bundle you are sent there is included a document you have not seen before which confirms the other side’s story, namely that another employee had complained of the spillage some hours before the accident.

Which ONE of the following is CORRECT with regard to your duty under the Code?

[A] You must withdraw from the case immediately.

[B] You must advise the client to disclose the document immediately. If the client does not do so then you must withdraw from the case.

[C] You must disclose the document yourself to the other side.

[D] The document cannot now be disclosed as disclosure has passed, and you must continue to act for the client.

ANSWER B

608. A barrister must cease to act and if he is a self-employed barrister must return any instructions:

(a) if continuing to act would cause him to be professionally embarrassed within the meaning of paragraph 603 provided that if he would be professionally embarrassed only because it appears to him that he is likely to be a witness on a material question of fact he may retire or withdraw only if he can do so without jeopardising the client’s interests;

(b) if having accepted instructions on behalf of more than one client there is or appears to be: (i) a conflict or risk of conflict between the interests of any one or more of such clients; or (ii) risk of a breach of confidence; and the clients do not all consent to him continuing to act;

(c) if in any case funded by the Legal Services Commission as part of the Community Legal Service or Criminal Defence Service it has become apparent to him that such funding has been wrongly obtained by false or inaccurate information and action to remedy the situation is not immediately taken by the client;

(d) if the client refuses to authorise him to make some disclosure to the Court which his duty to the Court requires him to make;

(e) if having become aware during the course of a case of the existence of a document which should have been but has not been disclosed on discovery the client fails forthwith to disclose it;

(f) if having come into possession of a document belonging to another party by some means other than the normal and proper channels and having read it before he realises that it ought to have been returned unread to the person entitled to possession of it he would thereby be embarrassed in the discharge of his duties by his knowledge of the contents of the document provided that he may retire or withdraw only if he can do so without jeopardising the client’s interests.

7.4 If during the course of a case a barrister becomes aware of the existence of a document which should have been but has not been disclosed on discovery he should advise his professional client to disclose it forthwith; and if it is not then disclosed, he must withdraw from the case.

6. Mrs Harris, for whom you act, is seeking a financial provision order in divorce proceedings brought against her former husband Ivor. He was a successful scrap metal dealer who walked out on her three years ago leaving her with little support and many large bills to meet. Eventually after a hotly contested interim maintenance hearing, she began to receive a reasonable amount of assistance with the household bills (which he pays direct) but remains dependent on means tested benefits for her weekly subsistence. Somewhat unrealistically, she dismisses the obvious fact that Ivor’s business is in decline as a “sham” designed to defeat her claim to half his business and other assets. Aggravated by the difficulties she experienced in extracting any financial support from Ivor in the first place she is more determined than ever to “take him for everything he’s got” and “see him die penniless”.

One week before the final hearing you are advised that Ivor has just made an attractive offer of settlement which, if accepted, will necessarily leave him bereft of capital at present but with the prospect of a better financial future for them both if relieved of the burdens of keeping your client over the next two years. Having regard to the overall circumstances, including the of your client, you advise acceptance. Mrs Harris, who has a Legal Representation Certificate for the maintenance case, refuses point blank to even consider the offer and wants “her day in court”.

Which ONE of the following CORRECTLY states your ethical duty in these circumstances?

[A] You do not have to do anything except continue to represent your client and fearlessly promote her best interests.

[B] You should write an Opinion in which you repeat your advice in favour of settlement in the hope that this may make the client see sense. If she does not, your professional and ethical duty is discharged by this act and you may continue to represent the client.

[C] You are under an obligation to inform the Legal Services Commission of your concerns, but may do so by telling your Instructing Solicitor to report the client to the Commission based upon your concerns.

[D] You are under an obligation to inform the Legal Services Commission of your concerns and must do so personally in all such cases.

ANSWER C

SPS 3 SUP

1. You have been asked to draft particulars of claim in a personal injury case. The particulars need to be filed urgently, and those instructing are absent from the office on holiday. Instructing solicitors have indicated that you should plead provisional damages for the client’s increased chance of developing osteo-arthritis as a result of the injury. There is no reference to this in the client’s medical report.

Which ONE of the following is CORRECT?

[A] You may include a claim for provisional damages for osteo-arthritis as you can assume instructing solicitors have investigated the matter. If they are wrong you are not culpable for including it in your particulars of claim.

[B] You may include a claim for provisional damages for osteo-arthritis but only should you get the client to sign the statement of truth.

[C] You may include a claim for provisional damages for osteo-arthritis, but must first ask permission of the court.

[D] You may not include a claim for provisional damages for osteo-arthritis, as you have no medical evidence to support it.

ANSWER D

704. A barrister must not devise facts which will assist in advancing the lay client’s case and must not draft any statement of case, witness statement, affidavit, notice of appeal or other document containing:

(a) any statement of fact or contention which is not supported by the lay client or by his instructions;

(b) any contention which he does not consider to be properly arguable;

(c) any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud.

(d) in the case of a witness statement or affidavit any statement of fact other than the evidence which in substance according to his instructions the barrister reasonably believes the witness would give if the evidence contained in the witness statement or affidavit were being given in oral examination;

provided that nothing in this paragraph shall prevent a barrister drafting a document containing specific factual statements or contentions included by the barrister subject to confirmation of their accuracy by the lay client or witness.

2. You are asked to attend at Newcastle Magistrates’ Court for a bail application, having only been informed that the client is charged with a burglary from the previous night. You arrive at the Magistrates’ Court at 9.40am with the client’s application being heard at 10am sharp. On entering the interview room you are surprised to see a client who you recognise as a fellow diner at an Indian restaurant you frequented with your partner the night before, and the client recognises you from the restaurant also. On interviewing the client it becomes clear that his alibi is that he was at that restaurant until 12.30am which makes his presence at the scene of the burglary at the time alleged highly unlikely. You can personally vouch for his presence at the restaurant until the time he states.

Which one of the following most accurately reflects the best course of action under the Code.

[A] As you are likely to be a material witness to this case, you must withdraw immediately.

[B] As you are likely to be a material witness to this case, you normally should withdraw, but given that your client is before the magistrates very shortly indeed it would prejudice his case to withdraw immediately. You may make the application but should accept no further instructions on this matter.

[C] As you are likely to be a material witness to the case, you can only make the client’s application for bail with the leave of the court.

[D] As you are likely to be a material witness to the case, you may make the application for bail provided you agree to be cross-examined by the prosecution.

ANSWER B

608. A barrister must cease to act and if he is a self-employed barrister must return any instructions:

3.6 A barrister must not accept any brief or instructions if the matter is one in which he has reason to believe that he is likely to be a witness. If, however, having accepted a brief or instructions, it later appears that he is likely to be a witness in the case on a material question of fact, he may retire or withdraw only if he can do so without jeopardising his client’s interests.

3. Against the backdrop of continuing cuts to publicly funded criminal cases, a self employed barrister decides to look at alternative income streams to supplement her income. She is thinking about setting up a company to provide staff to represent people being interviewed at police stations in connection with criminal matters. She has not received the Bar Standards Board requisite training to give advice at police stations.

Under the Code of Conduct, which ONE of the following is CORRECT?

[A] She may set up the company provided she registers it with the Bar Standards Board.

[B] Provided that she herself is not attending upon clients in interviews at police stations, there is no other potential bar to her involvement in such an occupation.

[C] She must not engage directly or indirectly in such an occupation if her association with it may prejudice her ability to attend properly to her practice.

[D] She must not engage in such an occupation in any circumstance.

ANSWER C

301. A barrister must have regard to paragraph 104 and must not:

SPS 4

1. You have been instructed by the Claimant in a contractual dispute to write a second opinion on liability in light of new evidence included in instructions. This new evidence consists of an email between directors of the Defendant company which would be excellent evidence for the claimant to adduce at court to prove his claim. Your instructions make it clear that the email was obtained during a meeting between the parties where the claimant printed a copy from the defendants’ office computer while the defendant’s director had to leave his office. The Defendant company is unaware that the claimant has obtained this email. Disclosure of documents has already taken place and the email was not disclosed. The trial is a mere fortnight hence. This is a complicated case and, as such, has been placed on the multi-track.

Which ONE of the following courses of action is CORRECT?

[A] As it is in the best interests of the client you should read the email and advise that it should be used against the Defendant company at trial, provided our possession of it and our intended use of it is disclosed immediately to the defendant.

[B] As the document was improperly obtained you should return it immediately to the Defendant without reading it.

[C] As long as it is not admitted how the document was obtained it can be used as leverage in negotiations with the other side, though not at trial.

[D] You should not read the email as it is clear from the instructions that it has been improperly obtained. In addition you must return the brief and withdraw from the case. You should write a note to the instructing solicitors advising that the document be returned immediately to the Defendant and that no use can be made of it in any negotiations or at trial.

ANSWER B

608. A barrister must cease to act and if he is a self-employed barrister must return any instructions:

7.1 A barrister should not obtain or seek to obtain a document, or knowledge of the contents of a document, belonging to another party other than by means of the normal and proper channels for obtaining such documents or such knowledge.

7.2 If a barrister comes into possession of a document belonging to another party by some means other than the normal and proper channels (for example, if the document has come into his possession in consequence of a mistake or inadvertence by another person or if the document appears to belong to another party, or to be a copy of such a document, and to be privileged from discovery or otherwise to be one which ought not to be in the possession of his professional or lay client) he should:

(a) where appropriate make enquiries of his professional client in order to ascertain the circumstances in which the document was obtained by his professional or lay client; and

(b) unless satisfied that the document has been properly obtained in the ordinary course of events at once return the document unread to the person entitled to possession of it.

7.3.1 If having come into possession of such a document the barrister reads it before he realises that he ought not to, and would be embarrassed in the discharge of his duties by his knowledge of the contents of the document, then provided he can do so without prejudice to his lay client he must return his brief or instructions and explain to his professional client why he has done so.

7.3.2 If, however, to return his brief or instructions would prejudice his lay client (for example, by reason of the proximity of the trial) he should not return his brief or instructions and should, unless the Court otherwise orders, make such use of the document as will be in his client’s interests. He should inform his opponent of his knowledge of the document and of the circumstances, so far as known to him, in which the document was obtained and of his intention to use it. In the event of objection to the use of such document it is for the Court to determine what use, if any, may be made of it.

2. You are acting for a client in a personal injury case which occurred at work. Should liability be proved the damages for the client for pain, suffering and loss of amenity (PSLA) would be in the region of £20,000. However, from the evidence as it stands it appears as if the client’s case is somewhat weak. The Defendants have made a Part 36 offer for PSLA of £4,000. Given the weakness of the case you advise your client in conference that the case is weak and that they should accept that offer.

Consider the following responses from the client. What advice should you give to your client in each case and/or what action should you take? Give reasons for your answer (take each in turn).

(i) “I still think that they (the Defendants) should be made compensate me for my injuries to the full amount. Therefore, I strongly disagree with your advice and I wish to continue fighting the case”. (2 marks)

601. A barrister who supplies advocacy services must not withhold those services:

(b) on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him or to any section of the public;

(ii) “But it’s obvious what’s happened. The accident report was clearly falsified subsequent to the event. I want to fight on and for you to point out to the court that the Defendants have doctored their documents”. (2 marks)

708. A barrister when conducting proceedings in Court:

(f) must not make a submission which he does not consider to be properly arguable;

(g) must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person;

(iii) “You’re not fighting for me as hard as you should be. They’ve pulled the wool over your eyes and you’ve fallen for it. Either that or you’ve cooked this up with the other side hoping I’ll drop the case and you get money for nothing. I’m fighting on”. (3 marks)

609. A barrister may withdraw from a case where he is satisfied that:

(a) his instructions have been withdrawn;

(b) his professional conduct is being impugned;

(c) advice which he has given in accordance with paragraph 607( advise the client to have different representation) or 703(conflict between lay client and intermediaries: advise lay client to instruct another professional adviser or representative) has not been heeded; or

(d) there is some other substantial reason for so doing.

3. You are supposed to be flying out to a friend’s birthday party in France at 1 p.m. on 8th September. You booked the flight some time ago but forgot to tell your clerk. You have only just realised that this date clashes with an appeal against conviction for an offence of speeding in which you have accepted instructions from the Crown Prosecution Service (CPS).

The appeal is based on a technical point about the speed detection device that was used. The Appellant’s solicitors are obviously unaware of a recent case, in light of which the appeal is bound to fail.

The appeal is currently first in the list and you are confident that, if it starts on time, you will be able to catch your flight. However, the listing officers at the Crown Court sometimes alter the lists at the last minute and it is possible that your appeal will be put back to later in the day.

Which ONE of the following is CORRECT?

[A] Because you booked the flight before you accepted instructions, you are permitted to return the case.

[B] You may assume that the case will be first in the list and will start on time. If the list changes, it is the fault of the listing officers and you are permitted to return the case on the day.

[C] You might ask the CPS to send copies of the case law to the Appellant’s solicitors in the hope that they will abandon the appeal. If they do not abandon the appeal, you will have to cancel your flight.

[D] You are not permitted to ask the CPS to send copies of the case law to the Appellant’s solicitors because this would be putting undue pressure on the other side. You will simply have to cancel your flight.

ANSWER C

610. A barrister must not:

4. You have been instructed in a professional negligence case against a firm of solicitors. The solicitors in question are a firm who provide you with a lot of work, but you were not involved in the original case which gave rise to the professional negligence allegation. Assume you have sufficient time and expertise to conduct the case. Can you accept the instructions? What considerations arise?

FAQ 19: If you have any current instructions from that firm, you should not accept the new instructions since there will be a clear conflict of interest between your client in the negligence action and the firm as a whole. The fact that the solicitor concerned has not instructed you himself is not relevant since the firm, as a whole, is likely to be involved.

If you have no current instructions from the firm, then you need consider whether paragraphs 603(f) and (d) of the Code are relevant. The first prevents you from acting where you have knowledge of confidential information from a previous client which would give your new client an undue advantage. Unless you are very familiar with the firm, this is unlikely to be relevant. The second provision prohibits you from acting where there is some connection which might compromise your professional independence or cause the administration of justice to be or appear to be prejudiced.

603. A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:

5. One of the long-standing clients of a solicitor who regularly instructs you has been arrested and is currently at a local police station awaiting interview for a suspected case of theft. The client has requested that the solicitor attend the police station for the purpose of advising him and attending the interview but no-one from the solicitor’s firm can go. The solicitor calls you and instructs you to attend the police station to advise the lay client and be present in the interview.

Which ONE of the following is CORRECT?

[A] You must attend the police station and advise etc according to your instructions as the “Cab-rank” rule prevents you from declining any such work.

[B] You may only attend the police station to advise the lay client and be present at the interview as instructed, but only if you have received such training as the BSB requires of barristers before they can do so. You are also permitted to represent the same client in the same matter in subsequent criminal proceedings provided that you reasonably believe that nothing you have said, done, heard or seen at the police station might require you to give evidence in those proceedings.

[C] You may only attend the police station to advise the lay client and be present at the interview as instructed, but only if you have received such training as the BSB requires of barristers before they can do so. However even with the requisite training you are not then permitted to conduct subsequent proceedings in court for the same client in the same matter under any circumstances.

[D] You may not attend the police station as instructed as all practising barristers are prohibited from undertaking such work.

ANSWER B

401 A self-employed barrister whether or not he is acting for a fee:

(b) must not in the course of his practice, except as permitted by the Public Access Rules:

(i) undertake the management administration or general conduct of a lay client’s affairs;

(ii) conduct litigation (for example issuing any claim or process or instructing any expert witness or other person on behalf of his lay client or accepting personal liability for the payment of any such person) and must not conduct correspondence or other work involving other parties.

(iii) conduct a case in court if the barrister has previously investigated or collected evidence for that case unless the barrister reasonably believes that the investigation and collection of that evidence is unlikely to be challenged.

(iv) attend at a police station without the presence of a solicitor to advise a suspect or interviewee as to the handling and conduct of police interviews unless the barrister has complied with such training requirements as may be imposed by the Bar Standards Board in respect of such work.

(vi) Conduct in court any criminal proceedings in which the barrister has attended at a police station for any defendant in connection with those proceedings or any associated proceedings unless the barrister reasonably believes that nothing said, done, heard or seen by the barrister at the police station might require him/her to give evidence in those proceedings.

SPS 4 SUP

1. You are representing a client in a nuisance claim where she alleges there is a high volume of traffic using their private road as a short-cut to a nearby kennels. Instructing solicitors commissioned a survey which, though showing some use of the client’s road by clientele of the kennels, unfortunately suggests that the client has greatly exaggerated the problem. However you think the survey was not undertaken at a time of day which would show the true extent of the problem. You consider parking your car opposite the client’s road to do your own survey at a time you think more likely to produce a positive result for the client.

Which ONE of the following is CORRECT?

[A] If you do collect such evidence you may not then conduct the case in court as this evidence is likely to be challenged by the other side.

[B] If you do collect such evidence you may still conduct the case in court and adduce this evidence, provided that you disclose it to the other side immediately.

[C] If you do collect such evidence you may conduct the case in court and adduce this evidence, but only if it is incorporated into an expert’s report.

[D] If you do collect such evidence you may conduct the case in court and adduce this evidence, but only if you agree to be cross-examined on it.

ANSWER A

401 A self-employed barrister whether or not he is acting for a fee:

(b) must not in the course of his practice, except as permitted by the Public Access Rules:

2. You are a junior counsel who, alongside your senior, a QC, is representing a client accused of murder at trial. After all the witnesses have given evidence, but before the closing speech has taken place (which is due to be given by your senior), you receive an urgent message that your partner has prematurely gone into labour. You quickly ask your senior if it would be possible to leave the Court to attend your partner. She agrees and you swiftly effect your exit from the Court.

Have you or your senior contravened the Code at all?

Would your answer differ if you had been the junior counsel prosecuting the accused (assume again you are working with a senior counsel)?

15.1 Prosecuting counsel should be present throughout the trial, including the summing-up and the return of the jury. He may not absent himself without leave of the Court; but, if two or more barristers appear for the prosecution, the attendance of one is sufficient.

15.2.1 Defence counsel should ensure that the defendant is never left unrepresented at any stage of his trial.

15.2.2 Where a defendant is represented by one barrister, that barrister should normally be present throughout the trial and should only absent himself in exceptional circumstances which he could not reasonably be expected to foresee and provided that:

(a) he has obtained the consent of the professional client (or his representative) and the lay client; and

(b) a competent deputy takes his place.

15.2.3 Where a defendant is represented by two barristers, neither may absent himself except for good reason and then only when the consent of the professional client (or his representative) and of the lay client has been obtained, or when the case is legally aided and the barrister thinks it necessary to do so in order to avoid unnecessary public expense.

15.2.4 These rules are subject to modification in respect of lengthy trials involving numerous defendants. In such trials, where after the conclusion of the opening speech by the prosecution defending counsel is satisfied that during a specific part of the trial there is no serious possibility that events will occur which will relate to his client, he may with the consent of the professional client (or his representative) and of the lay client absent himself for that part of the trial. He should also inform the judge. In this event it is his duty:

(a) to arrange for other defending counsel to guard the interests of his client;

(b) to keep himself informed throughout of the progress of the trial and in particular of any development which could affect his client; and

(c) not to accept any other commitment which would render it impracticable for him to make himself available at reasonable notice if the interests of his client so require.

3. You are conducting a trial in a defamation case. It is the third day of what is anticipated to be a three week trial. It is 9.30am and the court will sit at 10:00 am. You are in the robing room when your instructing solicitor calls to say that there is likely to be a lengthy delay of his train from a remote part of the country and there is no other way for him to make it to court on time.

Which ONE of the following is CORRECT?

[A] You must proceed with the trial at 10:00 am in the absence of the instructing solicitor as not to do so is a waste of court resources.

[B] If you think that the interests of the client are not prejudiced by the instructing solicitor’s absence you may proceed with the trial.

[C] You may proceed with the trial provided the absent solicitor is replaced with a court clerk.

[D] You can only proceed with the trial with the express leave of the court that you do so in the absence of the instructing solicitor.

ANSWER B

706. A self-employed barrister who is instructed by a professional client should not conduct a case in Court in the absence of his professional client or a representative of his professional client unless the Court rules that it is appropriate or he is satisfied that the interests of the lay client and the interests of justice will not be prejudiced.

707. A self-employed barrister who attends Court in order to conduct a case in circumstances where no professional client or representative of a professional client is present may if necessary interview witnesses and take proofs of evidence.

SPS 5

1. “I don’t like Mondays…”

You are a member of a common law set of Chambers and have been so for six years. You have built up a reasonable practice in construction disputes.

However a friend of yours who is a solicitor who gives lots of work to Chambers has a personal injury matter which unfortunately has been “dropped” by the original barrister instructed. He asks you to accept the instructions as, “I can’t find anyone able to take this on at short notice”. The instructions are that you would be representing a client the following Monday (18th of the month) in a trial. It is currently the 12th (Tuesday). Although you have dabbled in personal injury when you first practised, you have not taken on a personal injury case for years. However because it is a friend, and a firm which instructs you and your colleagues in Chambers with some frequency, you accept the brief.

[603. A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed:

(a) if he lacks sufficient experience or competence to handle the matter;

701. A barrister:

(b) must not undertake any task which:

(i) he knows or ought to know he is not competent to handle;

5.4 A barrister must in all his professional activities act promptly, conscientiously, diligently and with reasonable competence and must take all reasonable and practicable steps to ensure that professional engagements are fulfilled. He must not undertake any task which:

(a) he knows or ought to know he is not competent to handle;]

[307. A barrister must not:

(a) permit his absolute independence integrity and freedom from external pressures to be compromised;]

The brief arrives the next day but you decide to leave it until the weekend so you may concentrate on your trial which will take the rest of the week.

[ 701. A barrister:

(a) must in all his professional activities be courteous and act promptly conscientiously diligently and with reasonable competence and take all reasonable and practicable steps to avoid unnecessary expense or waste of the Court’s time and to ensure that professional engagements are fulfilled;

(b) must not undertake any task which:

(ii) he does not have adequate time and opportunity to prepare for or perform; or

(iii) he cannot discharge within the time requested or otherwise within a reasonable time having regard to the pressure of other work;

Having spent Saturday at a wedding where you have imbibed a significant amount of alcohol, on Sunday evening you settle down to prepare for the trial the following day. You feel somewhat out of your depth, but it is too late to withdraw now and in any case you are confident that the instructing solicitor will be able to fill any gaps in your knowledge. The brief contains a large number of documents and you end up working your way through them until 1am. Unfortunately your assessment on the papers read thus far is that the client will struggle to prove the case as you think there are some large “holes” in her account of events. However, desperate for some sleep you go to bed, setting the alarm for 5am so you can finish your preparation.

[701. A barrister:

[5.3 A barrister is at all times individually and personally responsible for his own conduct and for his professional work both in Court and out of Court.

306. A barrister is individually and personally responsible for his own conduct and for his professional work: he must exercise his own personal judgement in all his professional activities.]

To your dismay you sleep in and wake up at 8.30am which should just give you enough time to throw on some clothes and get to court for 10. You arrive, somewhat dishevelled, at 9.45 just in time to see your client before the trial is due to start. To the surprise of both the solicitor and lay client you advise them that in these circumstances they should take the offer currently on the table from the other side due to the discrepancies in the client’s witness statement.

[5.12 In Court a barrister’s personal appearance should be decorous, and his dress, when robes are worn, should be compatible with them.]

[5.7 Generally, a barrister should ensure that advice which he gives is practical, appropriate to the needs and circumstances of the particular client, and clearly and comprehensibly expressed]

While arguing with your client over whether to proceed, the usher of the court knocks on the door to interrupt your conference informing you that the judge has grown impatient and wishes to start. You try to persuade the usher that you need more time, but she refuses to ask the judge for such and is adamant that you make your way to court. You mutter “stupid bitch” under your breath as you leave, but it is clear that both the usher and the client has heard your remark.

[5.9 A barrister should be available on reasonable notice for a conference prior to the day of hearing of any case in which he is briefed; and if no such conference takes place then the barrister should be available for a conference on the day of the hearing. The venue of a conference is a matter for agreement between the barrister and his professional clients.

[5.5 A barrister must at all times be courteous to the Court and to all those with whom he has professional dealings.]

During the morning session in court you are delighted that, in cross-examining your client, opposing counsel seems unaware of the discrepancies in your client’s witness statement which were apparent to you.

[FAQ 42: Where the defendant is unrepresented, there is no duty to draw any point of discrepancies/gap/inconsistencies to opposing parties attention. It is not your role to do the other party’s job for them. The case would be different where the D is unrepresented]

When you return from lunch the defendants seem interested in re-opening negotiations to settle the matter. You enter negotiations with the opposing counsel where an offer is made which is an improvement on the previous offer but still some way short of the full amount claimed.

[5.1 A barrister must at all times promote and protect fearlessly and by all proper and lawful means his lay client’s best interests.

303. A barrister:

Seeing a chance that you can rid yourself of this troublesome case you make a token effort at improving the Defendants’ offer and eagerly agree when they increase it by a small amount.

[303. A barrister:

(a) must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person (including any colleague, professional client or other intermediary or another barrister, the barrister’s employer or any Authorised Body of which the barrister may be an owner or manager);]

You return to the client and the solicitors and have a difficult conference trying to persuade the client of the wisdom of accepting the offer. Exasperated you eventually threaten to withdraw from the case leaving the client to fight on without representation, whereupon the client reluctantly agrees to settle on the terms agreed.

[610. A barrister must not:

(c) return a brief which he has accepted and for which a fixed date has been obtained or (except with the consent of the lay client and where appropriate the Court) break any other engagement to supply legal services in the course of his practice so as to enable him to attend or fulfil an engagement (including a social or non-professional engagement) of any other kind;

(d) except as provided in paragraph 608 return any instructions or withdraw from a case in such a way or in such circumstances that the client may be unable to find other legal assistance in time to prevent prejudice being suffered by the client.]

Relieved to not have to continue with the trial, you tie matters up and return to Chambers.

A couple of weeks later in discussing this case over dinner with a colleague who specialises in personal injury, she points out to you the recent case of Smith v Jones which outlines that, in cases such as your erstwhile client’s, substantially more damages are given than those the client agreed to settle for.

2. You have been asked to draft a statement of case concerning a case of alleged misrepresentation. Your client bought what he thought was a classic 1957 Les Paul guitar from an antique dealer only to later find that the guitar was, in fact, a far less valuable 1974 Les Paul. The vendor claims that it is an honest mistake and that he told the client that he was no expert regarding vintage guitars. You have been instructed by solicitors to allege fraud in the client’s statement of case.

Which ONE of the following is CORRECT?

[A] You must allege fraud in the statement of case as you cannot contravene your instructions.

[B] You must allege fraud in the statement of case unless there is unchallengeable and compulsive evidence in the bundle that the vendor could not possibly have realised it was a 1964 Les Paul.

[C] You may be able to allege fraud if the bundle includes prima facie evidence that the vendor could not honestly believe that the guitar was a 1957 Les Paul.

[D] You may be able to allege fraud if the bundle includes prima facie evidence that the vendor could not honestly believe that the guitar was a 1957 Les Paul, but only if the evidence in its current form can be put before the court to make the allegation.

ANSWER C

(c) any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud;

307. A barrister must not:

(a) permit his absolute independence integrity and freedom from external pressures to be compromised;

(b) do anything (for example accept a present) in such circumstances as may lead to any inference that his independence may be compromised;

(c) compromise his professional standards in order to please his client the Court or a third party, including any mediator ;

3. Robert Earnshawe is a barrister at Gant’s Hill Chambers. He accepts a brief in the matter of Geoff Brookes, who has been charged with burglary of the property of Mahfaz Khan, his next-door neighbour. When arrested, Geoff gave no explanation to the police as to his whereabouts on the night of the burglary. Mr Khan is an elderly man, but there is no suggestion in the evidence provided in the case that he suffers from senility. Robert forgets to read the brief until the morning of the trial and turns up to court with only 5 minutes to talk to his client. Robert asks Geoff why he failed to account for his whereabouts when arrested as his “silence may be used by the prosecution to draw an adverse inference”. Geoff does not understand what this means, and asks Robert to explain it. Robert replies “well it means what I have just said, that an adverse inference will be drawn”. Robert gives no further explanation until the court usher calls them in for the trial to commence.

[701. A barrister:

11.2 A barrister acting for the defence:

(b) should arrange a conference and if necessary a series of conferences with his professional and lay clients;]

[5.7 Generally, a barrister should ensure that advice which he gives is practical, appropriate to the needs and circumstances of the particular client, and clearly and comprehensibly expressed]

In cross-examination of Mr Khan, Robert loudly and persistently suggests that his memory of the person who burgled his flat is defective due to senility. Mr Khan breaks down in tears. The jury returns a not guilty verdict. On his way out of court, Mr Khan’s daughter accuses Robert of being a racist. He tells her to “stop whining and shut up”. Flush with success, Robert meets up with Trevor Marshall, his instructing solicitor, in a pub. After consuming an excessive amount of alcohol, Robert and Trevor get into a violent argument, which ends in Trevor punching Robert in the face. The next day Robert arrives at chambers to find that the previous day (before his fight) he had been instructed by Trevor in another burglary trial commencing the following week.

[708. A barrister when conducting proceedings in Court:

(g) must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person;]

[301. A barrister must have regard to paragraph 104 and must not:

(a) engage in conduct whether in pursuit of his profession or otherwise which is:

(i) dishonest or otherwise discreditable to a barrister;

(iii) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;]

[603. A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed]

Answer all of the following questions.

(a) Has Robert infringed the Bar Code of Conduct in respect of his actions before the trial? Give reasons for your answer.

(3 marks)

(b) Has Robert infringed the Bar Code of Conduct in respect of his actions during and immediately after the trial? Give reasons for your answer.

(4 marks)

(c) Advise Robert as to the impact of the Code of Conduct in respect of his evening out with Trevor and its aftermath, and what course of action he should take.

(3 marks)

4. You received instructions to write an opinion on a civil matter. On perusal of the papers you conclude that on the facts as presented your lay client does not have much of a case and would likely lose if the matter would come to court. You write an opinion to that effect giving full justification for your conclusions on the facts.

A month later you received further instructions on the same matter for the same professional and lay clients. Again the instructions ask that you write an opinion on liability in the matter. However on this occasion the lay client’s witness statement presents slightly different and more detailed facts. As presented this time, the lay client’s case would be substantially stronger. The explanation from the instructing solicitors is that the lay client now remembers matters more clearly than before. What should you do?

306. A barrister is individually and personally responsible for his own conduct and for his professional work: he must exercise his own personal judgement in all his professional activities.

5.3 A barrister is at all times individually and personally responsible for his own conduct and for his professional work both in Court and out of Court.

SPS 5 SUP

1. You are senior member of a Chambers which specialises in criminal work. A large proportion of the work in Chambers comes from a solicitors’ firm specialising in defending serious sexual offence cases. One of your colleagues has recently retired leaving room to take another tenant to replace him. You are heading a Panel comprising of members of Chambers tasked with selecting a new tenant. Before you are two candidates applying for the tenancy. Both are equally qualified, equally experienced and give equally impressive interviews. One is a man, the other a woman.

Because of the nature of much of the Chambers’ work in defending clients accused of serious sexual offences, your Panel is inclined to give the tenancy to the woman, as it often just “plays better” in court to have a woman defending male clients against such charges.

Should your Panel grant the tenancy to the female candidate on that ground alone, would it be in breach of the Code at all (give reasons for your answer)

305.1. A barrister must not in relation to any other person (including a client or another barrister or a pupil or an employee or a student member of an Inn of Court) discriminate directly or indirectly because of race, colour, ethnic or national origin, nationality, citizenship, sex, sexual orientation, marital status, disability, age, religion or belief.

404.2 Head of chambers must take all reasonable steps to ensure that:

(a) his chambers are administered competently and efficiently and are properly staffed;

(b) the affairs of his chambers are conducted in a manner which is fair and equitable for all barristers and pupils;

(i) that all pupillage vacancies are advertised in the manner prescribed by the Bar Council;

(ii) that such arrangements are made for the funding of pupils by chambers as the Bar Standards Board may by resolution from time to time require;

(iii) that in making arrangements for pupillage, regard is had to the pupillage guidelines issued from time to time by the Bar Council and Bar Standards Board and to the Equality and Diversity Code for the Bar;

(d) Proper arrangements are made in chambers for dealing with equal opportunity issues and in particular,

(i) that Chambers appoint at least one Equal Opportunities Officer

(ii) that Chambers shall have a written Equal Opportunities Policy made available to all members of Chambers and Staff and to the Bar Council and Bar Standards Board when required, which shall set out the policy adopted by Chambers in relation to each of the Action Areas in the Equality and Diversity Code for the Bar and shall have regard to the recommendations in the Code.

2. You are acting for the Respondents (prosecution) in an Appeal in the Crown Court against a conviction imposed by the Magistrates’ Court. The case is one of domestic violence. The Appellants (defence) request, and are granted, an adjournment of 14 days due to the non-attendance of a defence witness. While you are leaving the hearing, counsel for the Appellants says to you, “Just between me and you, confidentially, you don’t stand a chance really. What you should have done is talk to the defendant’s brother-in-law, then we might have been in trouble!”

Once the Appellant’s barrister has left, you advise the CPS instructing you to interview the defendant’s brother-in-law. As indicated by your opponent his evidence is very useful to the Respondents and in the subsequent appeal hearing the appeal is refused.

After the hearing you are confronted by the opposing counsel who says, “I expressly told you that in confidence. To have used that information is a breach of professional ethics. I will be reporting you to the Bar Standards Board!”

Does he have any grounds for reporting you for a breach of ethics? Give reasons for your answer.

FAQ 10. 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 his best interests to know, you should

tell him and adjust the way in which you handle the case accordingly.

There is a common, but mistaken, belief, that communications between Counsel are automatically

subject to “Counsel to Counsel” confidentiality, with the result that you cannot tell your client anything

which opposing Counsel told you unless you have opposing Counsel’s permission. The true position is

that communications between Counsel are no different from any other communication between the

lawyers for opposing parties.

It sometimes happens that opposing Counsel offers to speak to you on a “Counsel to Counsel” basis, or

otherwise indicates that he wants you to agree not to tell your client what opposing Counsel is about to

tell you. You should not agree to do this without your lay client’s permission. You will have to advise

your client whether it is in his best interests for you to be given information which you cannot

communicate to him. You will need to consider the practical implications of receiving information on this

basis. In some cases, it may lead to your becoming professionally embarrassed. (See R v. B. & G.

[2004] 1 WLR 2932. for an example of a case in which counsel considered that they were unable to

continue once they became aware of relevant information which the Judge ordered them not to

communicate to their clients.)

303. A barrister:

3. You are appearing as counsel for the defendant in a personal injury trial. The Claimant has instructed a medical expert with whom you have dealt in past cases. You have thereby formed an opinion that the expert is consistently biased in the claimant’s favour when giving evidence.

Which ONE of the following isCORRECT?

[A] You should not inform the court of your opinion.

[B] You should make your opinion known to the judge.

[C] You should make your opinion known to the expert when cross-examining him.

[D] You should make your opinion known to the Claimant when cross-examining him.

Answer A

708. A barrister when conducting proceedings in Court:

(b) must not unless invited to do so by the Court or when appearing before a tribunal where it is his duty to do so assert a personal opinion of the facts or the law;

Ethics – Practice Q/As

Categories

Recent Posts