PE SGS 2: Accepting / returning instructions

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billsykes
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197346
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PE SGS 2: Accepting / returning instructions
Updated:
2013-03-01 13:30:13
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Bar Professional Ethics
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BPTC 2013
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  1. Where is the ‘Cab-rank rule’ to be found, and what is it?
    (s.601) A barrister must not withhold services:

    (a)  on the ground that the nature of the case is objectionable to him;

    (b)  on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him;

    (c)  on any ground relating to the source of any FINANCIAL SUPPORT (Community Legal Service or Criminal Defence Service).

    WHAT IS IT???

    (s.602) A self-employed barrister must comply with the ‘Cab-rank rule’ and

    (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.”
  2. When MUST a barrister NOT accept instructions?
    (s.603) If it would cause him to be professionally EMBARRASSED:

    (a)  if he lacks sufficient experience or competence to handle the matter;

    (b)  if he's unable to do or WILL NOT have adequate time and opportunity to PREPARE due to other professional commitments

    (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 the Code

    (d)  if he is likely to be a witness or difficult for him to maintain professional independence or the administration of justice might be prejudiced;

    (e)  if there is 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;

    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.
  3. When is a barrister NOT obliged to accept instructions?
    (s.604) ...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;

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

    (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 acceptsthe instructions those fees are not paid;
  4. When must a barrister WITHDRAW from a case?
    (s.608) (a)  if continuing to act would cause him to 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.
  5. When may a barrister withdraw from a case?
    (s.609)

    (a)  his instructions have been withdrawn;

    (b)  his professional conduct is being impugned (challenged);

    (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.”
  6. Can a barrister express his personal opinions in court?
    (s.708) must not unless invited to do so by the Court
  7. When can a pupil undertake a NOTING BRIEF?
    (s.802) A barrister who is a pupil may supply legal services as a barrister and exercise a right of audience if:

    He has completed six months of pupillage,

    and

    He has the permission of his pupil supervisor OR head of chambers

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