#17049 - BPTC Professional Ethics - BPC Professional Ethics

Introduction

The Professional Ethics course has been a source of consternation to BPTC students in recent years. The assessment format changed in the academic year 2016-2017 to include a written paper with 6 short-answer questions (SAQs). Each SAQ is worth 10 marks and can be broken down into sub-questions. However, much of the teaching material at providers is still based on the former assessment format of mixed SAQ and Multiple Choice Questions (MCQs). This material, if it is used properly by students, can nevertheless still prove useful as preparation for the final assessment.

Professional Ethics can prove a challenge to students because the new mode of assessment rewards lateral thinking. To perform well in this module, it is not enough simply to memorise the many rules in the Bar Standards Board’s Code of Conduct and Guidance Notes, but to apply them in a practical way. Start thinking like a practitioner and consider various potential steps that could be taken to address a Professional Ethics issue. Use the Small Group Sessions at your provider to discuss and explore the questions that you are given thoroughly: it will provide an invaluable foundation for your later revision.

The course is usually taught through a series of Small Group Sessions with sample SAQ and sometimes MCQ material to prepare for and discuss. The reading syllabus for this unit is smaller than that for Criminal Litigation and Evidence or Civil Litigation and Evidence, but it must be understood very well in order to shine in the final assessment. The syllabus comprises the Bar Standards Board’s Code of Conduct, which provides the core reading material, supplemented by the Guidance Notes issued by the Bar Standards Board in different areas of practice. The syllabus for Professional Ethics is changed frequently and occasionally only shortly before the examination, so please do check with your provider for an up-to-date copy of the examinable syllabus.

Depending on your provider, the course is divided into different categories which address various relationships in the life of a practitioner and the ethical obligations arising from those relationships. Each of these broad categories of professional relationship and their ensuing ethical duties will now be explored.

Professional Ethics: An Overview

All UK barristers’ professional life and conduct is primarily regulated by the Bar Standards Board (BSB). These regulations are contained within the BSB Code of Conduct and the associated Guidance. The Code of Conduct is structured around 10 Core Duties that a barrister must observe in his or her professional life. They are as follows:

CD1 You must observe your duty to the court in the administration of justice.

CD2 You must act in the best interests of each client.

CD3 You must act with honesty and integrity.

CD4 You must maintain your independence.

CD5 You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.

CD6 You must keep the affairs of each client confidential.

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

CD8 You must not discriminate unlawfully against any person.

CD9 You must be open and co-operative with your regulators.

CD10 You must take reasonable steps to manage your practice, or carry out your role within your practice, competently and in such a way as to achieve compliance with your legal and regulatory obligations.

Many ethical problems you encounter in SGS and assessment will cover several of these core duties. Do not make the mistake, however, of copying all of these duties down in a bid to obtain marks. It will not work. You must be able to confidently identify the core principles and the additional rules and guidance that flow from each of them.

Many of the duties, of course, do relate to each other. This is where lateral analysis across the rules and guidance of professional conduct can help. Take the example of representing a client. CD2 states that a barrister must act in the best interests of his client. The barrister owes the corresponding duty (CD6) to his client of keeping the client’s affairs confidential. However, this duty is subject to CD1, in which a barrister must observe his duty to the court. If there was a conflict between the two duties, such as when a direct question is asked by the court and the client refuses to allow the barrister to answer, there is a dilemma between duty to the client, confidentiality, and duty to the court.

In the given scenario, a barrister may not divulge the client’s information due to confidentiality (there are certain exceptions, such as serious risk of harm to others), but CD1 demands that the court is not misled. In the case where a client’s wishes and the requirements of the court are incompatible, the duty to the court prevails. In the above example, a barrister would have to withdraw from the case if the conflict could not be resolved. You must be able to understand the hierarchy among the rules and come to sensible, practical conclusions as to how to decide the best outcome.

The BPTC is a course preparing students to become practitioners. As a result, it requires a problem-solving, practical mindset. The Professional Ethics course is no exception. Students may be surprised to learn that marks may be allocated for mentioning in assessment to remain courteous to a difficult client. Yet, this is hopefully something that you would remember to be in practice! Being courteous is found in the guidance notes to CD5, reminding students and practitioners that providing a competent standard of work includes service. Being courteous is simply a part of supplying the standard of service required of a practitioner. Keep your advice practical and related to the facts.

Each core duty is supplemented by additional rules and guidance which give greater depth and understanding to a barrister’s professional ethical duties. They deal with broader themes of Professional Ethics in practice. Broadly, the themes around which the Professional Ethics rules are:

1) Barristers and the Court, 2) Ethical behaviour for barristers, 3) Barristers and clients, 4) Barristers and their regulators, and 5) Barristers and their practice. Much of the core content for the Professional Ethics exam is focused on numbers 1, 2 and 3.

A good approach to your learning, revision, and exam strategy for Professional Ethics might therefore be to group the subsequent rules around these five themes in mind-maps. You could then think of hypothetical situations in which the rules may or may not apply to consolidate your learning and prepare for the assessment. You will also find worked examples throughout this text to guide you in this respect.

We have touched briefly on a barrister’s duty to the court in this overview, and we will now explore this area in greater detail.

Theme One: The barrister and the court

Due to its status at the top of the hierarchy of core duties, it is important to fully understand a barrister’s duty to the court in the administration of justice. The BSB illustrates in the Handbook that this is so that both the court and clients can rely on the honesty and integrity of advocates, that justice is served and that there is public confidence in that service of justice.

To fully comply with the duty to the court, below is a summary of associated rules and guidance. It should be read as a guide to helping understand each section of BSB Handbook, not as a replacement for the required syllabus reading.

You must not knowingly or recklessly mislead or attempt to mislead the court.

This means not saying or representing in any way, including by asking questions, anything which you know, or have been instructed, to be either false or misleading.

It also means that a barrister also has the responsibility to correct information which is misleading or later becomes misleading.

You should appreciate between knowing a fact to be untrue, and simply not believing what a client says. You may still act for a client without believing his story. That does not amount to deceiving the court. What would constitute misleading would be putting forward a positive case for a client that you know to be false.

Worked example

Consider the following example:

A client tells you that he is guilty but wants to take his chances on jury trial and pleads not guilty. What advice do you give in these circumstances? 6 marks

The suggested approach is to break this down into conflicting duties. Here there is a conflict between the duty to the court on one hand and the duty to the client and that of confidentiality on the other.

Once you have identified those concepts, you can apply them in more detail to the facts. You can use hypothetical scenarios in your answer to demonstrate your understanding of the ethical issues involved.

The first thing to consider is that this information that the client has given you is confidential. You should advise the client that it will remain so unless the client gives instructions to waive this. (1 mark).

Then the hypothetical: if the client chooses not to waive this, then the mitigation that you may present on his behalf will be limited. (1 mark).

You should advise that you would not be able to put forward any representation of innocence, such as suggesting an alibi or any other such evidence suggestive of innocence. 1 mark.

Even though you cannot disclose the information regarding your client’s guilt without his consent (confidentiality, 1 mark), you should advise him that if you are asked directly, you ...