25 September 2018

Part VII - Conduct of work by practising barristers

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

This section contains the duties of barristers when conducting work, including the general duties to act courteously and promptly, the duty of confidentiality, duties where there is a conflict between clients, duties when drafting documents and appearing in court, the rules concerning contact with witnesses and media comment and advertising.

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General

701. A barrister:

(a) must in all his professional activities be courteous and act promptly conscientiously diligently and with reasonable competence and take all reasonable and practicable steps to avoid unnecessary expense or waste of the Court's time and to ensure that professional engagements are fulfilled;

(b) must not undertake any task which:

(i) he knows or ought to know he is not competent to handle;

(ii) he does not have adequate time and opportunity to prepare for or perform; or

(iii) he cannot discharge within the time requested or otherwise within a reasonable time having regard to the pressure of other work;

(c) must read all instructions delivered to him expeditiously;

(d) must have regard to any relevant Written Standards for the conduct of Professional Work issued by the Bar Council;

(e) must inform his client forthwith and subject to paragraph 610 return the instructions to the client or to another barrister acceptable to the client:

(i) if it becomes apparent to him that he will not be able to do the work within the time requested or within a reasonable time after receipt of instructions;

(ii) if there is an appreciable risk that he may not be able to undertake a brief or fulfil any other professional engagement which he has accepted.


(f) must ensure that adequate records supporting the fees charged or claimed in a case are kept at least until the last of the following: his fees have been paid, any taxation or determination or assessment of costs in the case has been completed, or the time for lodging an appeal against assessment or the determination of that appeal, has expired, and must provide his professional client or licensed access client  or other intermediary or lay client with such records or details of the work done as may reasonably be required.

Confidentiality

702. Whether or not the relation of counsel and client continues a  barrister must preserve the confidentiality of the lay client's affairs and must not without the prior consent of the lay client or as permitted by law lend or reveal the contents of the papers in any instructions to or communicate to any third person (other than another barrister, a pupil, in the case of a Registered European Lawyer, the person with whom he is acting in conjunction for the purposes of paragraph 5(3) of the Registered European Lawyers Rules or any other person who needs to know it for the performance of their duties) information which has been entrusted to him in confidence or use such information to the lay client's detriment or to his own or another client's advantage.

Conflicts between lay clients and intermediaries

703. If a self-employed barrister forms the view that there is a conflict of interest between his lay client and a professional client or other intermediary (for example because he considers that the intermediary may have been negligent) he must consider whether it would be in the lay client's interest to instruct another professional adviser or representative and, if he considers that it would be, the barrister must so advise and take such steps as he considers necessary to ensure that his advice is communicated to the lay client (if necessary by sending a copy of his advice in writing directly to the lay client as well as to the intermediary).

 Drafting documents

704. A barrister must not devise facts which will assist in advancing the lay client's case and must not draft any statement of case, witness statement, affidavit, notice of appeal or other document containing:

(a) any statement of fact or contention which is not supported by the lay client or by his instructions;

(b) any contention which he does not consider to be properly arguable;

(c) any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud;

(d) in the case of a witness statement or affidavit any statement of fact other than the evidence which in substance according to his instructions the barrister reasonably believes the witness would give if the evidence contained in the witness statement or affidavit were being given in oral examination;

 provided that nothing in this paragraph shall prevent a barrister drafting a document containing specific factual statements or contentions included by the barrister subject to confirmation of their accuracy by the lay client or witness.

Contact with witnesses

705. A barrister must not:

(a) rehearse practise or coach a witness in relation to his evidence;

(b) encourage a witness to give evidence which is untruthful or which is not the whole truth;

(c) except with the consent of the representative for the opposing side or of the Court, communicate directly or indirectly about a case with any witness, whether or not the witness is his lay client, once that witness has begun to give evidence until the evidence of that witness has been concluded.

Attendance of professional client

706. A self-employed barrister who is instructed by a professional client should not conduct a case in Court in the absence of his professional client or a representative of his professional client unless the Court rules that it is appropriate or he is satisfied that the interests of the lay client and the interests of justice will not be prejudiced.

707. A self-employed barrister who attends Court in order to conduct a case in circumstances where no professional client or representative of a professional client is present may if necessary interview witnesses and take proofs of evidence.

Conduct in Court

708. A barrister when conducting proceedings in Court:

(a) is personally responsible for the conduct and presentation of his case and must exercise personal judgement upon the substance and purpose of statements made and questions asked;

(b) must not unless invited to do so by the Court or when appearing before a tribunal where it is his duty to do so assert a personal opinion of the facts or the law;

(c) must ensure that the Court is informed of all relevant decisions and legislative provisions of which he is aware whether the effect is favourable or unfavourable towards the contention for which he argues;

(d) must bring any procedural irregularity to the attention of the Court during the hearing and not reserve such matter to be raised on appeal;

(e) must not adduce evidence obtained otherwise than from or through the client or devise facts which will assist in advancing the lay client's case;

(f) must not make a submission which he does not consider to be properly arguable;

(g) must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person;

(h) must if possible avoid the naming in open Court of third parties whose character would thereby be impugned;

(i) must not by assertion in a speech impugn a witness whom he has had an opportunity to cross-examine unless in cross-examination he has given the witness an opportunity to answer the allegation;

(j) must not suggest that a victim, witness or other person is guilty of crime, fraud or misconduct or make any defamatory aspersion on the conduct of any other person or attribute to another person the crime or conduct of which his lay client is accused unless such allegations go to a matter in issue (including the credibility of the witness) which is material to the lay client's case and appear to him to be supported by reasonable grounds.

Conduct in Mediation1

708.1 A barrister instructed in a mediation must not knowingly or recklessly mislead the mediator or any party or their representative.

Advertising and publicity

709.1 Subject to paragraph 709.2 a barrister may engage in any advertising or promotion in connection with his practice which conforms to the British Codes of Advertising and Sales Promotion and such advertising or promotion may include:

(a) photographs or other illustrations of the barrister;

(b) statements of rates and methods of charging;

(c) statements about the nature and extent of the barrister's services;

(d) information about any case in which the barrister has appeared (including the name of any client for whom the barrister acted) where such information has already become publicly available or, where it has not already become publicly available, with the express prior written consent of the lay client.

709.2 Advertising or promotion must not:

(a) be inaccurate or likely to mislead;

(b) be likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;

(c) make direct comparisons in terms of quality with or criticisms of other identifiable persons (whether they be barristers or members of any other profession);

(d) include statements about the barrister's success rate;

(e) indicate or imply any willingness to accept instructions or any intention to restrict the persons from whom instructions may be accepted otherwise than in accordance with this Code;

(f) be so frequent or obtrusive as to cause annoyance to those to whom it is directed.

 

1Amended 23rd March 2005