Ethics syllabus

Professional Ethics: Unit 1 - Syllabus Areas

• Handbook Version 4.8 contains extracts of the Code of Conduct taken from the BSB.

Introduction: General

• The Bar Standards Board (BSB) regulates advocacy, litigation, and legal advisory services.
• These legal services have a close relationship to access to justice and the rule of law.
• Regulatory objectives of the BSB derive from the Legal Services Act 2007.
• The objectives can be summarized as:
  • Protecting and promoting the public interest.
  • Supporting the constitutional principles of the rule of law.
  • Improving access to justice.
  • Protecting and promoting the interests of consumers.
  • Promoting competition in the provision of services.
  • Encouraging an independent, strong, diverse, and effective legal profession.
  • Increasing public understanding of citizen's rights and duties.
  • Promoting and maintaining adherence to professional principles.
  • Ensuring authorised persons act with independence and integrity.
  • Ensuring authorised persons maintain proper standards of work.
  • Ensuring authorised persons act in the best interests of their clients.
  • Ensuring authorised persons comply with their duty to the court, acting independently in the interests of justice.
  • Ensuring the affairs of clients are kept confidential.
• The BSB Handbook sets out the standards that regulated persons must comply with to meet regulatory objectives.
• The Handbook serves as a reference tool for those regulated by the BSB and consumers of legal services.
• Part 2 of the Handbook, containing Core Duties and outcomes, indicates what consumers should expect from the regulatory framework.

Structure of the Handbook

• The Handbook consists of the following parts:
• Part 1: Introduction
• Part 2: The Code of Conduct
• includes the ten Core Duties underpinning the BSB's regulatory framework, along with supplementary rules.
• Mandatory compliance with Core Duties and rules is required.
• The Code of Conduct also contains details of the outcomes compliance aims to achieve.
• The BSB's approach to regulation is risk-focused, defining outcomes considering risks the profession needs to manage.
• Part 3: Scope of Practice and Authorisation and Licensing Rules
• Includes practice requirements as a barrister or European lawyer and the process for BSB entity authorisation
• Provides a summary of activities for each type of BSB authorised person.
• Part 4: Bar Qualification Rules
• Sets out training requirements a person must complete and other criteria to be called to the Bar.
• Includes details that BSB authorized persons must meet for training, and regulation of Authorised Education and Training Organisations (AETOs).
• Part 5: Enforcement Regulations
• Sets out enforcement procedures if applicable persons fail to act as required by the Handbook.
• Part 6: Definitions
• Defines all italicized terms used in the Handbook.
• The Handbook includes Core Duties, Outcomes, Guidance, Rules and Regulations, form the basis for enforcement action and are set out in Part E.
• The effect of something being classified as a Core Duty, Outcome, Guidance, Rule or Regulation is as follows:
• Core Duties: Underpin the entire regulatory framework and set the mandatory standards that all BSB regulated persons or unregistered barristers must meet relating to professional conduct. Disciplinary proceedings may be taken against a BSB regulated person or unregistered barrister.
• Outcomes: Explain regulatory scheme reasons and aims. Derived from LSA regulatory objectives and risks for their achievement. Are not mandatory rules but factors for a BSB regulated person or unregistered barrister when applying Conduct Rules or Bar Qualification Rules.
• Rules:
• Conduct Rules supplement Core Duties and are mandatory leading to disciplinary proceedings for breaches. Not exhaustive, so Core Duties are always relevant.
• "Scope of Practice Rules" set out mandatory authorization requirements and scope of practice.
• Part 3 and 4 rules specify role requirements regulated by the BSB. Failure to meet these bars the role undertaking.
• Guidance: Serves to aid application and interpretation of Core Duties or Rules. In Part 3, it gives more information about discretionary powers in the entity authorization process.
• Regulations: Regulations bind the BSB in considering Handbook breaches and enforcement. They also bind any individuals to the enforcement process.

Amendments, Waivers, and Applications

• Amendments and/or additions to the Handbook may be made by the Bar Standards Board (BSB) and take effect as appointed or when published.
• The BSB cannot amend or waive any rule to permit a person not called to the Bar to practice, without the consent of the Inns.
• Amendments and additions are publicized on the Bar Standards Board website.
• The Bar Standards Board can waive or modify the duty imposed to comply with Handbook provisions or any Handbook requirement.
• Waivers are conditional or unconditional as the Bar Standards Board sees fit.
• Waiver applications must be written, detailing all relevant, supported circumstances.
• The Handbook applies to:
• all barristers, including practising barristers, pupils and unregistered barristers.
• European lawyers registered by the Bar Standards Board and an Inn, in connection with their professional work in England and Wales.
• bodies authorised or licensed by the Bar Standards Board.
• individuals authorised to provide reserved legal activities by another Approved Regulator where such individuals are employed by a BSB authorised person.
• all managers of BSB entities and, to the extent expressed, owners.
• non-authorised individuals who are employed by a BSB authorised person.
• those wishing to be called to the Bar and authorized education and training organisations.
• those in paragraphs rl7.1–7, are referred to as “BSB regulated persons” throughout this Handbook (except those without a provisional practicing certificate, unregistered barristers and owners. For Part 5, those is considered as "applicable persons").

Conflict and Commencement

• If a BSB authorised individual is employed by an authorized (non-BSB) body and is subject to its regulations and has compliance with the regulations that may conflict then the provision will not apply.
• If a pupil is the pupil of not an authorized body, or the pupil of a manager/employee of a BSB entity this Handbook will apply as a employee of the body.
• The provisions applicable to barristers, apply to registered European lawyers in England and Wales.
• In the event of inconsistency, application sections specific to a Part prevail.
• Handbook fourth edition was effective on 1 April 2019, replacing the third edition on 3 April 2017.
• For matters before January 6, 2014, Parts 2 and 3 don't apply; that edition's Code of Conduct applies.

Handbook Interpretations

• Italicized words/phrases follow Part 6 meaning. Singular references include plural forms and vice versa. References to other provisions are to their amended versions. References incorporate any extended/applied revisions of the stated enactment.

Core Duties and Code of Conduct

The subsequent study notes pertain to sections outlining various duties, rules and guidelines for conduct of those regulated by the BSB

• Section 2.B (Core Duties) applies to all BSB regulated persons and unregistered barristers, references shall be construed accordingly.

• Section 2.C (Conduct Rules):

• Applies to all BSB regulated persons, and unregistered barristers practicing as a barrister.

• references shall be construed accordingly.

• Section 2.D (Specific Rules): applies to specific groups as defined in each sub-section and references to “you” and “your” shall be construed accordingly.

Legal Services and CD application

• Section 2.B applies when practicing or otherwise providing legal services with CD5 and CD9 applying at all times. Section 2.C applies when practicing or otherwise providing legal services in addition to rules rC8, rC16 and rC64 to rC70 and the associated guidance applying at all times.
• Sections 2.B, 2.C and 2.D only apply to registered European lawyers in connection with professional work in England and Wales.

Core Duties

• CD1 - To serve the court in the administration of justice.
• CD2 - To act in the best interests of each client.
• CD3 - To act with honesty and integrity.
• CD4 - To maintain your independence.
• CD5 - Not to behave in a way likely to diminish public trust in you or the profession.
• CD6 - To keep the affairs of each client confidential.
• CD7 - To provide a competent standard of work and service to each client.
• CD8 - Not to discriminate unlawfully against any person.
• CD9 - Be open and co-operative with your regulators.
• CD10 - Take reasonable steps to manage your practice competently and in a way that achieves compliance with regulatory obligations.

Core Duty Guidance

• The Core Duties are not presented in order of precedence, with CD1 overriding any other core duty, if and to the extent the two are inconsistent. Rules rC3.5 and rC4 deal specifically with the relationship between CD1, CD2 and CD4
• In certain other circumstances, one Core Duty overrides another.
• The obligation to take reasonable steps to manage your practice competently and in a way that achieves compliance with your legal and regulatory obligations (CD10) includes an obligation to take all reasonable steps to mitigate the effects of any breach of those legal and regulatory obligations once you become aware of the same.
• The obligation to be open and co-operative with your regulators (CD9) includes being open and co-operative with all relevant regulators and ombudsman schemes, including but not limited to approved regulators under the Legal Services Act 2007 and the Legal Ombudsman.

Conduct Rules and the Court

• Outcome C1 - The court can rely on information provided by those in litigation/advocacy.
• Outcome C2 - The proper administration of justice is served.
• Outcome C3 - Client interests are protected compatibly with oC1, oC2, and Core Duties.
• Outcome C4 - Court attendees/clients understand advocate duties and duty overrides.
• Outcome C5 - Public confidence in administration of justice and those serving it is upheld.

Standards with the Court

• Duty to the court is to act independently in the interests of justice and overrides other obligations (beyond criminal law), and specific obligations apply whether acting as an advocate or in litigation.
• There is a need to avoid misleading court. Must not knowingly mislead or attempt misleading court; or abuse role as advocate, requires not wasting court's time and ensuring access to relevant decisions/laws.
• Acting independently also means you do not compromise your ability to act independently.
• Duty toward each client's best interests is subject to duty to the court. Duty to court doesn't require acting against keeping affairs of each client confidential.

Responsibility as Advocate

• Your duty not to mislead includes not making submissions, representations or any other statement; or ask questions which suggest facts to witnesses which you know, or are instructed, are untrue or misleading, or call a witness without first disclosing that you do no believe the facts presented.
• Knowingly misleading the court also includes inadvertently misleading the court if you later realise that you have misled the court, and you fail to correct the position;
• Your duty includes drawing to the attention of the court any decision or provision which may be adverse to the interests of your client and doesn't prevent you from putting forward your client's case simply, as long as the positive case accords with your instructions and you do not mislead the court.
• Your duty does not permit or require you to disclose confidential information which you have gotten without client authorization, but requires you not to mislead the court and if there is a risk that the court will be misled you must ask for permission to disclose it or cease.
• You may not disclose previous convictions without consent (even though the prosecution may not be aware of it).
• If you are the client that you have committed the crime with which they are charged, you would not be entitled to disclose that information to the court without your client's consent; and you would not be misleading the court if, after your client had entered a plea of 'not guilty', you were to test in cross-examination that the prosecution had not succeeded in making them sure of your client's guilt.
• This goes all the way to setting up an alibi.
• A self-employed barrister, a clerk may confirm on your behalf your acceptance of instructions in accordance with Rules rC22 and rC23 above
• You should give thought on taking such work with a Legal Advice Centre.

Abusing Role as Advocate

• Do not abuse your role. includes not making statements solely to insult/annoy and make allegations you haven't subjected the witness to for examination. You must also have reasonable grounds and only name third-parties in court only when nessecary
• Also do not put forward to the court a personal opinion of the facts or the law
• Those regulated by the Bar Standards Board maintain standards of honesty, integrity, independence. They do not discriminate unlawfully and understand the obligations within said bounds, with some requirements including drawing to the attention of the court any decision or provision which may be adverse to the interests of your client.

Act with Honesty and Integrity

• Must not do anything which could reasonably undermine your honesty/integrity. This includes recklessly or willingly misleading, drafting materials containing unsupported facts/contentions or baseless allegations of fraud, and improperly influencing misleading/untruthful witness testimony.
• Do not rehearse, practise or coach a witness; and do not communicate (including your client) about a case with any witness without the permission of the opposition. Only legal and reasonable fees should be proposed for such things as witness fees as well.
• Honesty, integrity and independence are fundamental since the interests of justice and best interests of the client can only happen when conduct is honorable.

Examples of compromising independence

• Offering commissions/referral fees or gifts to clients or intermediaries all compromise independence. So too does lending and accepting money from any client.
• The same applies to disproportionate levels of entertainment.

Ethics in Media

• The ethical obligations that apply in relation to your professional practice generally continue to apply in relation to media comment, including:
• Client's best interests: a barrister has to promote fearlessly the the lay client's best interests without regard.
• Independence: that you must not permit your absolute independence, integrity and freedom from external pressures to be compromised.
• Trust and confidence: that must not behave in a way which is likely to diminish the trust and confidence which the public places in you or the profession.
• Confidentiality: need to preserve the confidentiality of your lay client's affairs and you must not undermine this unless permitted to do so by law or with the express consent of the lay client.
• Conduct which is likely to be treated as a breach includes breaches of rC8/9, criminal activity, and discriminatory behaviour.

Rules C10 - Referral Fees

• Do not pay or receive these.
• Includes, any commission or referral fee (of what ever size), a gift (apart from items of modest value).

Rule 11 - Undertakings

• You must within an agreed timescale - or period - comply with any undertaking you give in the course of conducting litigation.
• Ensure that any insurance covers you in respect of any liability incurred in the same.

Rule 12 and Guidance to it.

• You must not discriminate unlawfully etc. on ethnicity, race, color, sex as such equality matters are contained to the BSB and BSB Handbook available on the BSB website.

Rule 13-14 - Dealing with Foreign work

• You must comply with conduct by that law or National bar (to ensure your not doing something that could be seen as illegal in the specific sector.

You and The Client - C3.

• Outcomes 10-20
• Show the standards of client service

Rules C15 and C16

• Duty to act in the best interests of each Client (Rule 15)
• Duty to provide a standard.
• Duty to keep certain things from client (confidentiality)
• You must act without regard from outside person
• Clients must be advised to seek legal help in the appropraitem circumstances

Further in addition

• In order to get a good recommendation you must keep your information/skills and development up to date in the professional scope.

• You should also remember client may get stressed in legal situations.

  • The duty of confidentiality is central to certain admin parts.