This is an extract of our BPTC Professional Ethics document, which we sell as part of our Professional Ethics Notes collection written by the top tier of City Law School students.
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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.
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 cannot mislead the Court (1 mark). This is the central tension of the question.
Now advise of the consequences: the Judge and/or the Prosecution are likely to notice if nothing is said about your client's innocence and investigate further (1 mark).
End of Worked example At what point does representing your client begin to mislead the court? The distinction is between being reactive, such as testing the Prosecution's case of guilt, and being proactive,
by putting forward representations of innocence. One is a permissible exploration of the
Prosecution case, testing witness evidence and reliability, making the Prosecution case has been proved beyond reasonable doubt. The other is deceptive because it involves putting forward an independent case which suggests innocence which you as counsel know to be untruthful.
Cross-examining a witness on her credibility and reliability is therefore acceptable, because it is testing the Prosecution case. Suggesting that the defendant had an alibi, or making any other suggestion that your client might not have committed the crime, however, is a breach of CD1.
A similar complication arises in the area of pre-convictions. Counsel may not put forward previous convictions without consent from the client. On the other hand, he must not put forward a case which proactively mitigates or depicts innocence. He may not state that a client has no convictions. In the event that the offence charged carries a mandatory sentence, the previous convictions must be disclosed to the court, or the barrister must withdraw from the case.
As already illustrated in the overview, the duty not to mislead includes, as far as confidentiality allows, providing the court with the information it seeks. If the court requires information, including documents, which a client is unwilling to provide, a barrister should explain the conflict to the client and withdraw from the case if the client persists in refusal.
Do not abuse your role as an advocate.
This includes statements or questioning whose purpose is to annoy, insult, or humiliate and not essential questioning on sensitive issues.
There of course will be occasions when it is an essential part of your case to ask questions which a witness may find upsetting or intrusive. This is not the same as only questioning in order to upset a witness. You should also avoid putting serious allegations to witnesses unless you have reasonable grounds for those accusations and those accused have a chance to answer the allegations in cross-examination.
You should also avoid putting forward your own opinion of the facts or the law in court.
This is the reason why barristers 'submit' reasons and legal points. As well as being a reason to deduct marks in advocacy sessions, saying 'I think' or 'I believe' in court is also a matter of
Professional Ethics. Not misleading the court and not abusing one's role as an advocate are two of the major rules associated with one's ethical obligations to the court. More general responsibilities are fairly common sense: act reasonably in order that the court's time is not wasted.
Supporting this is a rule requiring barristers to also, as far as reasonably possible, ensure that the court has all of the decisions and legislation necessary for the administration of justice. This may sometimes cause a conflict with a barrister's duties towards his client.
Consider the following example: during a court session, it becomes clear that you know about a case that the judge doesn't know about, that might be helpful to the other side.
What should you do?
Again, a worthwhile approach would be to identify the areas of conflict which are causing the ethical dilemma. Disclosing the case would be harmful to your client's case, and you might consider it to be conflicting with your duty to your client. However, your core duty to the court means that you must disclose the case in order to ensure that the court has all of the relevant legislative decisions that it requires. (1 mark). This relates to the corresponding general duty that a barrister should always maintain independence: you are not representing a party at any cost. (1 mark).
End of Worked example
The above general rules of maintaining independence are related to the next topic of behaving ethically as a barrister, which will now be examined. Ethical behaviour is wide ranging and this theme will therefore overlap with other themes and prove pervasive in the central examination questions.
Theme Two: Ethical Behaviour
This topic clusters primarily around three core duties: to behave with honesty and integrity
(CD3), to maintain independence (CD4), and, as result, CD5, not to act in any way that could diminish or damage the trust and confidence that the general public places in the Bar as a profession.
Misleading example: witnesses Some of the duties that flow from the duty to act with honesty and integrity will be familiar.
For example, misleading or attempting to mislead, which includes a failure to correct, is part of the duty to the court. Acting without misleading means not coaching or rehearsing a witness, despite what you may have seen on American TV shows!
A barrister may familiarise witnesses with the procedural aspects of giving evidence, but not the content. The exception is for certain expert witnesses, such as Doctors, who may need to go through medical terminology to be dealt with during their testimony. This would enable counsel to fully understand the medical evidence so that he can better question the witness and present the best possible case for his client.
Other witnesses, including police witnesses, fall under the general rule that the substance of those testimonies cannot be discussed with barristers. This is made clear from the case of R
v Momodou  EWCA Crim 177, which separates familiarising witnesses with the procedural elements of giving evidence from going through the essence of the evidence,
which amounts to rehearsal. Included in misleading witnesses is encouraging them to give untruthful or deceptive testimony.
Furthermore, whilst a witness is in the process of giving evidence, the handbook states that counsel should not communicate about the case with that witness without permission from the court, or from counsel for the opposition. Consider, for the purpose of assessment questions, the appearance of a barrister's conduct. Being seen with a witness during the giving of evidence may be perfectly legitimate, but the BSB Code of Conduct always asks barristers to consider the perception of lack of independence or integrity.
Acting with honesty and integrity
Obligations to act with honesty and integrity under CD3 are wide-ranging and diverse. As you should be aware from the section on 'you and the court,' you should not be making assertions or presenting facts to the court that are not supported by your client's instructions. You must have clear instructions on a particular point before making representations on it. This is particularly important in the case of fraud, for which a barrister must have the clearest instructions.
More general possible breaches of CD3 include acting dishonestly, abusing one's professional position, and acting in a seriously discreditable manner towards additional parties. This includes personal conduct as well as professional conduct. Acting in a manner amounting to discrimination is an example identified by the Handbook.
An example of abusing your professional position or acting in a discreditable manner might be for example, referring to your status as a barrister in a context where it is irrelevant.
Imagine that you are in a private dispute over a land boundary with your next door
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