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A claim has been started, concerning the ownership of shares in a business. The Claimants are brother and sister, Mr Leo Gardiner and Miss Teresa Gardiner. The Defendants are other family members. You represent the Claimants at an interim directions hearing. Just before the hearing, the Defendants make an offer of settlement which is much lower than the sum that you advise the Claimants they are likely to obtain at trial. The Claimants tell you that they will not accept the offer. However, during the interim hearing, the Judge directs that all parties should disclose their personal financial affairs over the previous three years to help the Court to decide the ownership of the business.
After the hearing, you tell the Claimants that they should expect their personal financial affairs to be disclosed in open Court and advise them that disclosure is necessary in order to succeed in their claim. Miss Gardiner immediately says that she has changed her mind and she would like to accept the offer which was made before the hearing, explaining “I don’t want my private affairs dragged through the Court”. Mr Gardiner says that she is being ridiculous, this is a direction that they all have to comply with and he is not prepared to accept the offer.
Please answer the following questions, giving full reasons for your answer in each case.
(a) Can you continue to act for both clients in these circumstances and what are the ethical issues that arise in coming to a decision on this point?
(b) In what circumstances could you agree to a settlement this morning?
Half an hour later, Defence Counsel, Mr Forthright, asks to speak to you privately. You agree. He advises you to persuade the Claimants to accept the Defendants’ offer or, he says, “Things could get pretty unpleasant” for the Claimants. You tell him that you need more time to take instructions. He then accuses you of “deliberately prolonging the litigation in order to increase your brief fee.”
(c) Is Mr Forthright in breach of the Code of Conduct or any other guidance provided by the Bar Standards Board and, if so, describe how?
(d) What action could you take in response to his recommendation and how should you behave in this situation? Consider any practical solutions to Mr Forthright’s behaviour.
(e) How, if at all, would your answers to (c) and (d) above be different if Mr Forthright had spoken to you in a raised voice in the Court lobby in front of members of the public who were likely to have heard him?
(10 marks in total)
(a) Where there is, or appears to be, a conflict or risk of conflict
between the interests of any one or more clients, (1 mark)
The barrister should withdraw
. (1 mark)
Unless all relevant persons (Mr and Miss Gardiner) consent
to the barrister accepting the instructions. (1 mark)
You must not cease to act or return your instructions without having first explained to the client your reason for doing so.
You can continue to act for both clients if one of them changes their instructions
so that they are in agreement, either to settle today or to fight the case. (1 mark)
(b) You can agree to a settlement this morning if both clients wish to do this. 603(e) (1 mark)
(c) Mr Forthright’s approach is a breach of the Code of Conduct, “A barrister must in all his professional dealings be courteous
”. (1 mark)
And of the Written Standards “A barrister must at all times be courteous to the Court
and to all those with whom he has professional dealings.” (1 mark)
(d) You could explain to Mr Forthright that his suggestion is unethical
and sounds like a threat
. (1 mark)
You could state that your clients will make the decision
as to whether to accept the other side’s offer. (1 mark)
You should stay calm
(1 mark) and polite
. (1 mark)
You should avoid allowing the atmosphere to escalate
. (1 mark)
You could report
Mr Forthright’s attitude to the Bar Standards Board. (1 mark) Or his Chambers. (1 mark)
- (e) In this case Mr Forthright’s conduct would be:
- discreditable to a barrister (1 mark) likely to diminish public confidence in the legal profession (1 mark) or the administration of justice (1 mark) or otherwise bring the legal profession into disrepute (1 mark).
You could therefore make a complaint
concerning Mr Forthright’s behaviour to the Bar Standards Board
. (1 mark)
Sanjay, a barrister, is instructed to represent Geoffrey on a charge of burglary. Unfortunately for Geoffrey the victim seems to have identified him, as he recently did some building work in the victim’s home.
Prior to the plea before venue and mode of trial hearing, Sanjay holds a client conference with Geoffrey. At that conference, Geoffrey states that, although he did not commit the offence, he is feeling very pressured by the litigation and would like to simply plead guilty to get the matter over with.
Answer BOTH of the following questions.
What advice should Sanjay give Geoffrey at the conference?
On the assumption that Sanjay gives full and correct advice to Geoffrey, what further practical steps should be taken if Geoffrey, after receiving all of the necessary advice, remains adamant in entering a guilty plea?
(10 marks in total)
If Geoffrey is not guilty, he should plead not guilty but that the decision is one for him as Defendant (1 mark).
What the consequences of such a plea will be (1 mark).
This should include the effect of a criminal record (1 mark).
That what can be submitted on Geoffrey’s behalf in mitigation can only be on the basis that he is guilty (1 mark) and will otherwise be strictly limited so that, for instance, Counsel will not be able to assert that the Defendant has shown remorse through his guilty plea (1 mark).
Sanjay may continue to represent Geoffrey if he is satisfied that it is proper to do so (1 mark).
Before a plea of guilty is entered Sanjay should record in writing the reasons for the plea (1 mark).
Geoffrey should be invited to endorse a declaration that he has given unequivocal instructions of his own free will that he intends to plead guilty even though he maintains that he did not commit the offence(s) (1 mark) and that he understands the advice given by Counsel (1 mark) and in particular the restrictions placed on Counsel in mitigating and the consequences to himself (1 mark).
Geoffrey should also be advised that he is under no obligation to sign that endorsement (1 mark).
If no such declaration is signed, Sanjay should make a contemporaneous note of his advice to Geoffrey (1 mark).
You are representing the Claimant in a civil claim for breach of contract. You are instructed by your instructing solicitors to draft the Particulars of Claim. Your instructions contain some, but not all, of the evidence in the case. You have seen evidence relating to the non-payment of an invoice which your instructing solicitors say was raised properly following the delivery by your client of a consignment of bottles ordered by the Defendant. You are told that the remainder of the evidence will follow but are asked to draft the Particulars of Claim as a matter of urgency in order to comply with the Court’s time limits.
What principles must you consider, before you draft a Particulars of Claim?
b) Your instructing solicitors ask you to draft an allegation of fraud against the Defendant, alleging the Defendant fraudulently obtained the bottles with no intention to pay for them. Your instructing solicitors say that the evidence for this will be available soon. What duties do you have to consider before drafting the allegation of fraud?
c) Your papers contain a document which you believe belongs to the Defendant. You consider that it is a document which should not have been disclosed to you at this stage. You have not read the document. What is your duty with regards to this document?
(10 marks in total)
Maximum 5 marks; 1 mark for each of the following -
You must exercise your own personal judgement upon the substance of any document you draft [Written Standards 5.8].
You must not devise facts which will assist the lay client’s case [Code of Conduct para 704; WS 5.8].
You must not draft any statement of case or pleading containing a statement of fact or contention which is not supported by the lay client or by your brief or instructions [Code of Conduct para 704(a); WS 5.8(a)].
You must not draft any statement of case or pleading containing any contention which you do not consider to be properly arguable [Code of Conduct para 704(b); WS 5.8(b)].
You are not prevented from drafting a document containing specific factual statements of contentions subject to confirmation of their accuracy by the lay client or witness [Code of Conduct para 704].
Maximum 2 marks. 1 mark for each of the following -
You must not draft any allegation of fraud unless you have clear instructions to do so.
You must have before you reasonably credible material, which, as it stands, establishes a prima facie case of fraud [Code of Conduct 704(c)].
Maximum 3 marks. 1 mark for each of the following -
A barrister should not obtain a document belonging to another party other than by means of the normal and proper channels [WS 7.1].
If you come into possession of a document belonging to another party by some means other than the normal and proper channels, you should make enquiries of your professional client in order to ascertain the circumstances in which the document was obtained by the professional client [WS 7.2(a)].
Unless satisfied that the document has been obtained in the ordinary course of events, you should immediately return the document unread to the person entitled to possession of it [WS 7.2(b)].
Note that the question states “you have not read the document”. Thus WS 7.3 does not apply.