#3688 - Professional Ethics Revision Notes - BPC Professional Ethics

10 Golden Rules

1. CONFIDENTIALITY Preserve the confidentiality of your lay client’s affairs.

2. DUTY TO COURT You must not knowingly or recklessly mislead the court.

3. DUTY TO PROFESSION You must not engage in conduct:

1. which is dishonest or otherwise discreditable to a barrister;

2. prejudicial to the interests of justice; or

3. which will diminish public confidence in the legal system or bring the legal profession into disrepute.

4. DISCRIMINATION You must not discriminate in relation to any person by reason of race, colour, ethnicity, religion, nationality, citizenship, sex, sexual orientation, marital status, disability or political persuasion.

5. INDEPENDENCE You must not permit your absolute independence, integrity, and freedom from external pressures to be compromised nor do anything which could lead to the inference that it is so compromised.

6. CAB RANK You must observe the “cab rank” rule: A barrister must accept instructions if it is in his field of expertise, whatever the instructions and whomever the client

7. PROFESSIONAL EMBARRASSMENT A barrister would be professionally embarrassed and must refuse instructions if:

1. He lacks sufficient experience or competence to handle the matter;

2. He has inadequate time or opportunity to prepare to case;

3. The instructions seek to limit his ordinary authority or discretion in the proceedings, or require him to act otherwise than in conformity with the law or this code;

4. If he may be a witness in the matter;

5. If by some connection with client or a member of the court it would be difficult for him to maintain professional independence or the administration of justice may be or appear to be prejudices.

6. There is a conflict of interest or a risk of a conflict of interest between the barrister and the client or between any one or more of his clients;

7. There is a significant risk that information confidential to a client or former client may be revealed or used without their consent;

8. He has been instructed by a lay client who has not instructed a solicitor and it is in the interests of the client or of justice for him to do so.

Written Standards 3.5: Where a barrister has accepted a brief from one party in proceedings, he should not accept a brief for an appeal or further stage in the proceedings without the consent of the original party.

A barrister may refuse instructions:

1. The require him to work other than during the course of his ordinary working year.

2. If it is not for a proper fee, considering the complexity, difficulty, and length of the case, his ability and seniority, and any expenses his will incur.

3. Offered under a CFA.

If at any time a barrister considered the client should be represented by another he should so advise the client.

A barrister must withdraw and return instructions if:

1. If he would be professionally embarrassed;

2. If he would be required to be a witness of fact, but only if he would withdraw without jeopardising his clients interest;

3. He has accepted instructions from more than one client and a conflict of interest or risk of conflict arises or a risk of a breach of confidence and all clients do not consent to him continuing;

4. The case is publically funded and the funding was obtaining by false or inaccurate information and action to remedy the situation was not taken immediately by the client;

5. The client refuses to authorise him to make a disclosure which a duty to the court requires him to disclose;

6. Client refuses to disclose a document that should be disclosed;

7. If a barrister reads something he shouldn’t have and he would be embarrassed by the contents, he must withdraw if it will not jeopardise the interests of his client;

A barrister may withdraw if:

1. He has advised his client that he should get alternative representation or that there is a conflict of interest between the lay client and another party (his profession client for instance) and the lay client and the client doesn't heed his instructions.

2. Other substantial reason for doing so.

3. His instructions have been withdrawn.

A barrister must NOT:

1. cease to act without explaining why;

2. return instructions to another barrister without the client’s consent;

3. return a brief where a date has been set without the consent of the client or the court;

4. except where the barrister must withdraw a barrister must not withdraw or return instructions where the client will be unable to find counsel in time for prejudice not to be done.

8. ARGUMENTS A barrister must not:

1. devise facts;

2. make allegations unsupported by your instructions and the evidence;

3. plead fraud without clear instructions AND sufficient evidence to raise a prima facie case; or

4. make submissions that are not properly arguable.

9. WITNESSES A barrister must not:

1. impugn a witness unless you have put that point to the witness in XX;

2. make defamatory allegations against any person unless such allegations are a matter in issue and are supported on reasonable grounds;

3. rehearse, practice, or coach a witness in relation to his evidence;

4. encourage a witness to be untruthful or which is not the whole truth.

10. BARRISTER DUTIES A barrister must act only within his competence, ensure he has reasonable time to prepare and perform, and READ ALL INSTRUCTIONS PROPERLY.

Other important rules

1. To bring to the attention of the court all the relevant decisions and legislative provisions of which you are aware, regardless of whether they are favourable to your case;

2. To bring any procedural irregularity to the attention of the court during the trial;

3. Not to assert a personal opinion to the court unless invited by the court to do so;

4. Not to make statements or ask questions which are merely intended to insult or annoy a witness or another person;

5. To take all reasonable and practicable steps to avoid unnecessary expense or wasting of the courts time.

6. To promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and to do so without regard to your own interests or to any other consequences to yourself or any other person.

7. To understand that this primary duty (above at 6) is to the lay client and not to the professional client.

Wasted Costs Orders

A barrister can be made personally liable for costs if they result from improper, unreasonable or negligent act or omission where the court finds that it would be unreasonable to expect the party to pay. However, there must be a causal link between the action and the wasted costs.

A three-stage test was set down in Re a Barrister:

1. Has there been an improper, unreasonable, or negligence act or omission?

2. If so, has any costs been incurred by any party in consequence thereof?

3. If so, should the court use its power to make the party pay some or all of the costs?

Sir Thomas Bingham clarified a few points:

• ‘improper’ is not exclusively violating the code but improper according to professional opinion;

• ‘negligence’ has the untechnical definition;

• Pursuing a claim that is doomed to failure is not improper, unreasonable, or negligent.

Duties of Prosecuting Counsel - Part 10 of Part 3 of the Code

Overriding responsibility of prosecuting counsel is to act fairly, impartially, and not to seek to obtain a conviction by all the means at his or her command.

It should also be known that it is for prosecuting counsel to decide whether to offer evidence on particular counts or whether to accept pleas for lesser count/s.

Other duties include:

• To lay all the facts before the court in a fair and impartial manner;

• Presenting the case as clearly and concisely as possible;

• Ensuring proper service upon the defence in line with the A-Gs Guidelines and CrimPR rules.

• To point out any relevant errors in fact or law after summing up;

• To assist the court with any relevant statutory provisions regarding sentencing and to not try and sway the court on sentencing through advocacy.

Further duties include:

• To inform the defence of any previous convictions of any of the prosecution witnesses;

• To call or tender witnesses at trial;

• To adduce all the evidence you intend to rely before closing your case;

• To disclose all the evidence that will be called at trial, all the information the defence may not be aware of which is not part of the prosecution’s case;

• To disclose all the evidence that the prosecution does not intend to rely on but that may undermine the prosecution’s case or assist the case of the defendant.

• The prosecution counsel has a continuing duty throughout the proceedings to ensure that all the evidence that ought to be available is used by the prosecution or disclosed to the defence.

• To be familiar with the Practice Direction: Crown Court (Plea and Directions Hearings).

Duties of Defence Counsel - Part 11 of Part 3 of the Code

General duties:

• To ensure that there is no conflict of interest or that none will arise when representing multiple defendants at a trial;

• Prepare the cases adequately;

• To advise the client on plea, although ensure the defendant understands that the final decision is theirs;

• To advise on whether the client should give evidence, although to ensure the defendant understand the final decision is theirs;

• To consider whether any admissions should be made or requested from the Prosecution in order to save expense at trail.

Where your client turns up with a new witness...

1. There is a prohibition on rehearsing with the witness or coaching the witness. Therefore you should not discuss the defence with the witness and especially not with the defendant present as this could give rise to contamination of the evidence.

2. You should never put a witness on the stand without a proof. Although it is usually not...