19 January 2018

Part VI - Acceptance and return of instructions

From 6 January 2014 the Bar should refer to a  new Handbook for rules and guidance on their conduct as barristers.

This section deals with the occasion on which barristers are required to accept instructions (the "Cab-rank rule"), when they are required to refuse or withdraw from a case and when they may choose to refuse or withdraw from a case.

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Acceptance of instructions and the 'Cab-rank rule'

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).

602. A self-employed barrister must comply with the 'Cab-rank rule' and accordingly except only as otherwise provided in paragraphs 603 604 605 and 606 he must in any field in which he professes to practise in relation to work appropriate to his experience and seniority and irrespective of whether his client is paying privately or is publicly funded:

(a) accept any brief to appear before a Court in which he professes to practise;

(b) accept any instructions;

(c) act for any person on whose behalf he is instructed;

and do so irrespective of (i) the party on whose behalf he is instructed (ii) the nature of the case and (iii) any belief or opinion which he may have formed as to the character reputation cause conduct guilt or innocence of that person.

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;

(g) 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.

604. Subject to paragraph 601 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;

and any instructions in a matter funded by the Legal Services Commission as part of the Community Legal Service or the Criminal Defence Service for which the amount or rate of the barrister's remuneration is prescribed by regulation or subject to assessment shall for this purpose unless the Bar Council or the Bar in general meeting otherwise determines (either in a particular case or in any class or classes of case or generally) be deemed to be at a proper professional fee.1 2  .

(c) to do any work under a conditional fee agreement;

(d) save in a matter funded by the Legal Services Commission as part of the Community Legal Service or the Criminal Defence Service:

(i) unless and until his fees are agreed;

(ii) if having required his fees to be paid before he accepts the instructions those fees are not paid;

(e) from anyone other than a professional client who accepts liability for the barrister's fees;

(f) in a matter where the lay client is also the professional client;3

(g) if the instructing solicitors are named on the List of Defaulting Solicitors, regardless of whether his fees will be paid by the Legal Services Commission or the Criminal Defence Service;

(h) save in a matter where the barrister is paid directly (a) by the Legal Services Commission as part of the Community Legal Service or the Criminal Defence Service or (b) by the Crown Prosecution Service, after 31 January 2013 to do any work other than on:

(i) the Standards Contractual Terms for the Supply of Legal Services by Barristers to Authorised Persons 2012 reproduced at Appendix T as amended and in force from time to time; or

(ii) if the self-employed barristers publishes standard terms of work, on those standard terms of work

(i) where the potential liability for professional negligence in respect of the case could exceed the level of professional indemnity insurance which is reasonably available and likely to be available in the market for him to accept.4

(j) to investigate or collect evidence (save for taking proofs of evidence or preparing witness statements urgently as part of the barrister's conduct of the case at court), to attend at a police station with or without a solicitor, or to conduct correspondence with other parties (save where reasonably necessary as part of the barrister's conduct of the case at court).

605. A self-employed Queen's Counsel is not obliged to accept instructions:

(a) to settle alone any document of a kind generally settled only by or in conjunction with a junior;

(b) to act without a junior if he considers that the interests of the lay client require that a junior should also be instructed.

606.1 A barrister (whether he is instructed on his own or with another advocate) must in the case of all instructions consider whether consistently with the proper and efficient administration of justice and having regard to:

(a) the circumstances (including in particular the gravity complexity and likely cost) of the case;

(b) the nature of his practice;

(c) his ability experience and seniority; and

(d) his relationship with the client;

the best interests of the client would be served by instructing or continuing to instruct him in that matter.

606.2 Where a barrister is instructed in any matter with another advocate or advocates the barrister must in particular consider whether it would be in the best interests of the client to instruct only one advocate or fewer advocates.

606.3 A barrister who in any matter is instructed either directly by the lay client or by an intermediary who is not a solicitor or other authorised litigator should consider whether it would be in the interests of the lay client or the interests of justice to instruct a solicitor or other authorised litigator or other appropriate intermediary either together with or in place of the barrister.

606.4 In cases involving several parties, a barrister must on receipt of instructions and further in the event of any change of circumstances consider whether, having regard to all the circumstances including any actual or potential conflict of interest, any client ought to be separately represented or advised or whether it would be in the best interests of any client to be jointly represented or advised with another party.

607. If at any time in any matter a barrister considers that it would be in the best interests of any client to have different representation, he must immediately so advise the client.

Withdrawal from a case and return of instructions

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.

609. Subject to paragraph 610 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 or 703 has not been heeded; or

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

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. 

1 On the 30 April 2001 the Bar Council decided that, with effect from 1 May 2001, all cases subject to family graduated fees are no longer deemed to be at a proper professional fee for the purposes of paragraph 604(b).
2 On the 15th November 2003 the Bar Council decided that, effective immediately, all cases subject to criminal graduated fees are no longer deemed  to be at a proper professional fee for the purposes of paragraph 604(b)
3 Amended 1st September 2005
4 Amended 1st March 2007
5Effective from 31st March 2010