#13741 - Summary - BPC Professional Ethics

CORE DUTIES

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

YOU AND THE COURT

1. You owe a duty to the court to act with independence in the interests of justice. This duty overrides any inconsistent obligations you may have (other than obligations under the criminal law). It includes:

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

   2. You must not abuse your role as an advocate;

   3. You must take reasonable steps to avoid wasting the court’s time;

   4. You must take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions;

   5. You must ensure that your ability to act independently is not compromised.

2. Your duty to act in the best interests of each client is subject to your duty to the court.

3. Your duty to the court does not require you to act in breach of your duty to keep the affairs of each client confidential.

Your duty not to mislead the court or to permit the court to be misled includes:

1. You must not:

   1. make submissions, representations, or any other statement; or

   2. ask questions which suggest facts to witnesses

which you know, or are instructed, are untrue or misleading.

2. You must not call witnesses to give evidence or put affidavits or witness statements to the court which you know, or are instructed, are untrue or misleading, unless you make clear to the court the true position as known by or instructed to you.

GUIDANCE

• Knowingly misleading the court includes inadvertently misleading the court if you later realise that you have misled the court, and you fail to correct the position.
  Recklessness means being indifferent to the truth, or not caring whether something is true or false.

• Your duty includes drawing attention of the court to any decision or provision which may be adverse to the interests of your client - particularly important when you are appearing against a litigant in person.

• Your role as an advocate is to present your client’s case - it is not for you to decide whether your client’s case is to be believed.

  • Eg. you are entitled to draw to the W’s attention any other evidence which appears to conflict with what the W is saying and you are entitled to indicate that a court may find a particular piece of evidence difficult to accept.
    BUT if W maintains that the evidence is true, it should be recorded in the WS and you will not be misleading the court if you call the W to confirm their WS.
    Equally there may be circumstances where you call a hostile W whose evidence you are instructed is untrue. You would not be in breach if you make the position clear to the court.

• If client were to tell you that he had committed the crime with which he was charged:

  1. you would not be entitled to disclose that information to the court without your client’s consent; AND

  2. you would not be misleading the court, if, after your client entered a plea of NG, you were to test in XX the reliability of the evidence of the P W and then address the jury to the effect that the P had not succeeded in making them sure of your client’s guilt.

• You would be misleading the court if you were to set up a positive case inconsistent with the confession, eg:

  1. Suggesting to P W, calling your client or your W to show; or submitting to the jury, that your client did not commit the crime; or

  2. suggesting that someone else had done so; or

  3. putting forward an alibi.

• If there is a risk that the court will be mislead unless you disclose confidential information which you have learned in the course of your instructions, you should ask the client for permission to disclose - if client refuses you must cease to act and return your instructions - in these circumstances you must not reveal the information to the court.

• Eg. Previous conviction of which P not aware - you may not disclose this without client’s consent, unless where mandatory sentences apply. In this situation you must advise that if consent is refused to your revealing the information you will have to cease to act.
  IF mandatory sentences do not apply, and your client does not agree to disclose previous convictions, you can continue to represent but in doing so must not say anything that misleads the court. -> This will constrain what you can say in mitigation, as you could not advance a positive case of previous good character knowing that there are undisclosed previous convictions. + if the court asks you a direct questions you must not give an untruthful answer and therefore you would have to withdraw if, on your being asked such a question, your client still refuses to allow you to answer the question truthfully. You should explain this to your client.

• Similarly, if you become aware that client has a document which should be disclosed but has not, you cannot continue to act unless your client agrees to disclosure. You must not reveal existence or contents of document to the court.

r - NOT ABUSING YOUR ROLE AS AN ADVOCATE

1. You must not make statements or ask questions merely to insult, humiliate or annoy a W or any other person;

2. You must not make a SERIOUS ALLEGATION against a W whom you have had an opportunity to XX unless you have given that W a chance to answer the allegation in XX;

3. You must not make a SERIOUS ALLEGATION against any person, or suggest that a person is guilty of a crime with which your client is charged unless:

   1. you have reasonable grounds for the allegation; AND

   2. the allegation is relevant to your client’s case or the credibility of a W; AND

   3. where allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary.

4. You must not put forward to the court a personal opinion of the facts or law unless you are invited or required to do so by the court or by law.

BEHAVING ETHICALLY

You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity and independence.

Your duty to act with honesty and integrity includes:

1. you must not knowingly or recklessly mislead or attempt to mislead anyone;

2. you must not draft any statement of case, WS or affidavit or other document containing:

   1. any statement fact or contention which is not supported by your client or by your instructions;

   2. any contention which you do not consider to be properly arguable;

   3. any allegation of FRAUD, unless you have clear instructions to allege fraud AND you have reasonably credible material which establishes an arguable case of fraud;

   4. any statement of fact other than evidence which you reasonably believe the W would give if the W were giving evidence orally.

3. You must not encourage a W to give evidence which is misleading or untruthful;

4. You must not rehearse, practice with or coach a W in respect of their evidence;

5. Unless you have the permission of the representative for the opposing side or of the court, you must not communicate with any W (including your client) about the case while the W is giving evidence;

6. You must not make, or offer to make, payments to any W which are contingent on his evidence or on the outcome of the case;

7. You must only propose, or accept, fee arrangements which are legal.

GUIDANCE

Conduct on your part which the public may reasonably perceive as undermining your honesty, integrity or independence is likely to diminish the trust and confidence placed in the profession.

The following may reasonably be seen as compromising your independence:

1. Offering, promising or giving:

   1. any commission or referral fee;

   2. a gift (apart from items of modest value)

2. Lending money to any client, professional client or other intermediary;

3. Accepting any money from any client, professional client or intermediary unless it is a payment for your professional services or reimbursement of expenses or of disbursements made on behalf of the client.

If you are offered a gift you should consider carefully whether the CIRCUMSTANCES and SIZE of the gift would reasonably lead others to think that your independence had been compromised. If this would be the case, you should refuse to accept the gift.

The giving or receiving of entertainment at a disproportionate level may also give rise to a similar issue and so should not be offered or accepted if it would lead others reasonably to think that your independence had been compromised.

Practicing barristers can express a personal opinion in the media in which they are briefed. Must exercise professional judgment. Assessment of:
- Nature and type of proceedings;
- Stage they have reached;
- Need to ensure that comment does not prejudice administration of justice;
- Nature of the comment.
Must consider if comment would require client’s consent.
Many barristers decline on the basis that they lack experience.
Assess the risk of personal liability for claims such as defamation, or...