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Part 2 THE CODE OF CONDUCT

A - APPLICATION

rC1 -

Who?

.1 -

Section 2.B (Core Duties): applies to all BSB regulated persons except where stated otherwise, and references to "you" and "your" in Section 2.B shall be construed accordingly. 

.2 -

Section 2.C (Conduct Rules):

.a -

Applies to all BSB regulated persons apart from unregistered barristers except where stated otherwise.

.b -

Rules C3.5, C4, C8, C16, C19 and C64 to C70 (and associated guidance to those rules) and the guidance on Core Duties also apply to unregistered barristers.

References to “you” and “your” in Section 2.C shall be construed accordingly

.3 -

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.

rC2 -

When?

.1 -

Section 2.B applies when practising or otherwise providing legal services .  In addition, CD5 and CD9 apply at all times.

.2 -

Section 2.C applies when practising or otherwise providing legal services .  In addition, rules C8, C16 and C64 to C70 and the associated guidance apply at all times.

.3 -

Section 2.D applies when practising or otherwise providing legal services.

.4 -

Sections 2.B, 2.C and 2.D only apply to registered European lawyers in connection with professional work undertaken by them in that capacity in England and Wales.

B - THE CORE DUTIES

CD1 -

You must observe your duty to the court in the administration of justice

CD2 -

You must act in the best interests of each client

CD3 -

You must act with honesty and integrity

CD4 -

You must maintain your independence

CD5 -

You must not behave in away which is likely to diminish the trust and confidence which the public places in you or in the profession

CD6 -

You must keep the affairs of each client confidential

CD7 -

You must provide a competent standard of work and service to each client

CD8 -

You must not discriminate unlawfully against any person

CD9 -

You must be open and co-operative with your regulators

CD10 -

You must take reasonable steps to manage your practice , or carry out your role within your practice , competently and in such a way as to achieve compliance with your legal and regulatory obligations

Guidance to the Core Duties

gC1 -

The Core Duties are not presented in order of precedence, subject to the following:

.1 -

CD1 overrides any other core duty, if and to the extent the two are inconsistent.  Rules C3.5 and C4 deal specifically with the relationship between CD1, CD2 and CD6 and you should refer to those rules and to the related Guidance;

.2 -

in certain other circumstances set out in this Code of Conduct one Core Duty overrides another.  Specifically, Rule C16 provides that CD2 (as well as being subject to CD1) is subject to your obligations under CD3, CD4 and CD8.

gC2 -

Your obligation to take reasonable steps to manage your practice, or carry out your role within your practice, competently and in such a way as to achieve 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.

C - THE CONDUCT RULES

C1 - You and the Court

Outcomes

oC1 -

The court is able to rely on information provided to it by those conducting litigation and by advocates who appear before it.

oC2 -

The proper administration of justice is served.

oC3 -

The interests of clients are protected to the extent compatible with outcomes C1 and C2 and the Core Duties.

oC4 -

Both those who appear before the court and clients understand clearly the extent of the duties owed to the court by advocates and those conducting litigation and the circumstances in which duties owed to clients will be overridden by the duty owed to the court.

oC5 -

The public has confidence in the administration of justice and in those who serve it.

Rules

rC3 -

You owe a duty to the court to act with independence in the interests of justice.  This duty overrides any inconsistent obligations which you may have (other than obligations under the criminal law). It includes the following specific obligations which apply whether you are acting as an advocate or are otherwise involved in the conduct of litigation in whatever role (with the exception of Rule C3.1 below, which applies when acting as an advocate):

.1 -

 you must not knowingly or recklessly mislead or attempt to mislead the court ;

.2 -

you must take reasonable steps to avoid wasting the court’s time;

.3 -

you must ensure that your ability to act independently is not compromised.

.4 -
you must take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions;
.5 -

you must ensure that your ability to act independently is not compromised.

rC4 -

Your duty to act in the best interests of each client is subject to your duty to the court .

rC5 -

Your duty to the court does not require you to act in breach of your duty to keep the affairs of each client confidential. 

Not misleading the court

Rules
rC6 -

Your duty not to mislead the court or to permit the court to be misled will include the following obligations:

1 -

you must not:

.a -

make submissions, representations or any other statement; or

.b -

ask questions which suggest facts to witnesses,

which you know, or are instructed, are untrue or misleading.

.2 -

you must not call witnesses to give evidence or put affidavits or witness statements to the court which you know, or are instructed, are untrue or misleading, unless you make clear to the court the true position as known by or instructed to you.

Guidance
gC3 -

Rules C3 – C6 set out some specific aspects of your duty to the court (CD1).  See CD1 and associated Guidance at C1

gC4 -

Knowingly misleading the court includes inadvertently misleading the court if you later realise that you have misled the court , and you fail to correct the position. Recklessness means being indifferent to the truth, or not caring whether something is true or false. The duty continues to apply for the duration of the case.

gC5 -

Your duty under Rule C3.3 includes drawing to the attention of the court any decision or provision which may be adverse to the interests of your client .  It is particularly important where you are appearing against a litigant who is not legally represented.

gC6 -

You are obliged by CD2 to promote and to protect your client’s interests so far as that is consistent with the law and with your overriding duty to the court under CD1. Your duty to the court does not prevent you from putting forward your client’s case simply because you do not believe that the facts are as your client states them to be (or as you, on your client’s behalf, state them to be), as long as any positive case you put forward accords with your instructions and you do not mislead the court .  Your role when acting as an advocate or conducting litigation is to present your client’s case, and it is not for you to decide whether your client’s case is to be believed.

gC7 -

For example, you are entitled and it may often be appropriate to draw to the witness's attention other evidence which appears to conflict with what the witness is saying and you are entitled to indicate that a court may find a particular piece of evidence difficult to accept.  But if the witness maintains that the evidence is true, it should be recorded in the witness statement and you will not be misleading the court if you call the witness to confirm their witness statement.  Equally, there may be circumstances where you call a hostile witness whose evidence you are instructed is untrue.  You will not be in breach of Rule C6 if you make the position clear to the court. See, further, the guidance at C14

gC8 -

As set out in Rule C4, your duty to the court does not permit or require you to disclose confidential information which you have obtained in the course of your instructions and which your client has not authorised you to disclose to the court .  However, Rule rC6 requires you not knowingly to mislead the court or to permit the court to be misled.  There may be situations where you have obligations under both these rules. 

gC9 -

Rule C3.5 makes it clear that your duty to act in the best interests of your client is subject to your duty to the court .  For example, if your client were to tell you that he had committed the crime with which he was charged, in order to be able to ensure compliance with Rule C4 on the one hand and Rule C3 and Rule C6 on the other:

.1 -

you would not be entitled to disclose that information to the court without your client’s consent; and

.2 -

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 the reliability of the evidence of the prosecution witnesses and then address the jury to the effect that the prosecution had not succeeded in making them sure of your client’s guilt.

gC10 -

However, you would be misleading the court and would therefore be in breach of Rules C3 and C6 if you were to set up a positive case inconsistent with the confession, as for example by:

.1 -

suggesting to prosecution witnesses, calling your client or your witnesses to show;or s ubmitting to the jury,that your client did not commit thecrime; or

.2 -

suggesting that someone else had done so; or

.3 -

putting forward an alibi. 

gC11 -

If there is a risk that the court will be misled unless you disclose confidential information which you have learned in the course of your instructions , you should ask the client for permission to disclose it to the court .  If your client refuses to allow you to make the disclosure you must cease to act, and return your instructions : see Rules C25 to C27 below.  In these circumstances you must not reveal the information to the court .

gC12 -

For example, if your client tells you that he has previous convictions of which the prosecution is not aware, you may not disclose this without his consent.  However, in a case where mandatory sentences apply, the non-disclosure of the previous convictions will result in the court failing to pass the sentence that is required by lawIn that situation, you must advise your client that if consent is refused to your revealing the information you will have to cease to act.  In situations where mandatory sentences do not apply, and your client does not agree to disclose the previous convictions, you can continue to represent your client but in doing so must not say anything that misleads the court. This will constrain what you can say in mitigation.  For example, you could not advance a positive case of previous good character knowing that there are undisclosed prior convictions.  Moreover, if the court asks you a direct question you must not give an untruthful answer and therefore you would have to withdraw if, on your being asked such a question, your client still refuses to allow you to answer the question truthfully. You should explain this to your client.

gC13 -

Similarly, if you become aware that your client has a document which should be disclosed but has not beendisclosed, you cannot continue to act unless your client agrees to the disclosure of the document.  In these circumstances you must not revealthe existence or contents of the document to the court . 

Not abusing your role as an advocate

rC7 -

Where you are acting as an advocate, your duty not to abuse your role includes the following obligations:

.1 -

you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;

 

.2 -

you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination;

.3 -

you must not make a serious allegation against any person, or suggest that a person is guilty of a crime with which your client is charged unless:

.a -

you have reasonable grounds for the allegation; and

  

.b -

the allegation is relevant to your client’s case or the credibility of a witness; and

   

.c -

where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary.

 

.4 -

you must not put forward to the court a personal opinion of the facts or the law unless you are invited or required to do so by the court or by law.

C2 - Behaving Ethically

Outcomes

oC6 -

Those and entities regulated by the Bar Standards Board maintain standards of honesty, integrity and independence, and are seen as so doing.

oC7 -

The proper administration of justice, access to justice and the best interests of clients are served.

oC8 -

Those and entities regulated by the Bar Standards Board do not discriminate unlawfully and take appropriate steps to prevent discrimination occurring in their practices.

oC9 -

Those and entities regulated by the Bar Standards Board and clients understand the obligations of honesty, integrity and independence.

Honesty, integrity and independence

rC8 -

You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).

rC9 -

Your duty to act with honesty and integrity under CD3 includes the following requirements:

.1 -

you must not knowingly or recklessly mislead or attempt to mislead anyone;

.2 -

you must not draft any statement of case, witness statement, affidavit or other document containing:

.a -

any statement of fact or contention which is not supported by your client or by your instructions ;

.b -

any contention which you do not consider to be properly arguable;

.c -

any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud;

.d -

(in the case of a witness statement or affidavit) any statement of fact other than the evidence which you reasonably believe the witness would give if the witness were giving evidence orally;

.3 -

you must not encourage a witness to give evidence which is misleading or untruthful;

.4 -

you must not rehearse, practise with or coach a witness in respect of their evidence;

.5 -

unless you have the permission of the representative for the opposing side or of the court , you must not communicate with any witness (including your client ) about the case while the witness is giving evidence;

.6 -

you must not make, or offer to make, payments to any witness which are contingent on his evidence or on the outcome of the case;

.7 -

you must only propose, or accept, fee arrangements which are legal.

Guidance on Rules C8 and C9 and their relationship to CD1, CD2, CD3, CD4 and CD5

gC14 -

Your honesty, integrity and independence are fundamental. The interests of justice (CD1) and the client’s best interests (CD2) can only be properly served, and any conflicts between the two properly resolved, if you conduct yourself honestly and maintain your independence from external pressures, as required by CD3 and CD4. You should also refer to Rule C16 which subjects your duty to act in the best interests of your client (CD2) to your observance of CD3 and CD4, as well as to your duty to the court (CD1).

gC15 -

Other rules deal with specific aspects of your obligation to act in your client’s best interests (CD2) while maintaining honesty, integrity (CD3) and independence (CD4), such as rule C21.10 (not acting where your independence is compromised), rule C10 (not paying or accepting referral fees) and C21 (not acting in circumstances of a conflict of interest or where you risk breaching one client’s confidentiality in favour of another’s).

gC16 -

Rule C3 addresses how your conduct is perceived by the public.  Conduct on your part which the public may reasonably perceive as undermining your honesty, integrity or independence is likely to diminish the trust and confidence which the public places in you or in the profession, in breach of CD5.  Rule C8 is not exhaustive of the ways in which CD5 may be breached.

gC17 -

In addition to your obligation to only propose, or accept, fee arrangements which are legal in Rule C9.7, you must also have regard to your obligations in relation to referral fees in Rule C10 and the associated Guidance.

Examples of how you may be seen as compromising your independence

gC18 -

The following may  reasonably be seen as compromising your independence in breach of Rule C8 (whether or not the circumstances are such that Rule C10 is also breached):

.1 -

offering, promising or giving:

.a -

any commission or referral fee (of whatever size) – note that these are in any case prohibited by rule C10 and associated guidance; or

.b -

a gift (apart from items of modest value),

to any client , professional client or other intermediary ; or

.2 -

lending money to any such client , professional client or other intermediary ; or

.3 -

accepting any money (whether as a loan or otherwise) from any client , professional client or other intermediary , unless it is a payment for your professional services or re-imbursement of expenses or of disbursements made on behalf of the client ;

gC19 -

If you are offered a gift by a current, prospective or former client , professional client or other intermediary , you should consider carefully whether the circumstances and size of the gift would reasonably lead others to think that your independence had been compromised.  If this would be the case, you should refuse to accept the gift.

gC20 -

The giving or receiving of entertainment at a disproportionate level may also give rise to a similar issue and so should not be offered or accepted if it would lead others  reasonably to think that your independence had been compromised. 

gC21 -

Guidance C18 to C20 above is likely to be more relevant where you are a self-employed barrister , a BSB authorised body , an authorised (non-BSB) individual , an employed barrister (BSB authorised body) or a BSB regulated manager .  If you are a BSB authorised individual who is a an employee or manager of an authorised (non-BSB) body or you are an employed barrister (non-authorised body) and your a pproved regulator or employer (as appropriate) permits payments to which Rule C10 applies, you may make or receive such payments only in your capacity as such and as permitted by the rules of your approved regulator or employer (as appropriate). For further information on referral fees, see the guidance at C32.

gC22 -

The former prohibition on practising barristers expressing a personal opinion in the media in relation to any future or current proceedings in which they are briefed has been removed.  Practising barristers must, nevertheless, ensure that any comment they may make does not undermine, and is not reasonably seen as undermining, their independence. Furthermore, any such comment must not bring the profession, nor any other barrister into disrepute. Further guidance is available on the Bar Standards Board's website (https://www.barstandardsboard.org.uk/regulatory-requirements/bsb-handbook/code-guidance/) or by clicking on the relevant link.

Examples of what your duty to act with honesty and integrity may require

gC23 -

Rule C9 sets out some specific aspects of your duty under CD3 to act with honesty and integrity.

gC24 -

In addition to the above, where the other side is legally represented and you are conducting correspondence in respect of the particular matter, you are expected to correspond at all times with that other party's legal representative – otherwise you may be regarded as breaching CD3 or Rule C9.

Other possible breaches of CD3 and/or CD5

gC25 -

A breach of Rule C9 may also constitute a breach of CD3 and/or CD5. Other conduct which is likely to be treated as a breach of CD3 and/or CD5 includes (but is not limited to):

.1 -

subject to Guidance C26 below, breaches of Rule C8;

.2 -

breaches of Rule C10;

.3 -

criminal conduct, other than minor criminal offences (see Guidance C27);

.4 -

seriously offensive or discreditable conduct towards third parties;

.5 -

dishonesty;

.6 -

unlawful victimisation or harassment ; or

.7 -

abuse of your professional position.

gC26 -

For the purposes of Guidance C25.7 above, referring to your status as a barrister , for example on professional notepaper, in a context where it is irrelevant, such as in a private dispute, may well constitute abuse of your professional position and thus involve a breach of CD3 and/or CD5.

gC27 -

Conduct which is not likely to be treated as a breach of Rules C8 or C9, or CD3 or CD5, includes (but is not limited to):

.1 -

minor criminal offences;

.2 -

your conduct in your private or personal life, unless this involves:

.a -

abuse of your professional position; or

.b -

committing a criminal offence , other than a minor criminal offence

gC28 -

For the purpose of Guidance C27 above, minor criminal offences include:

.1 -

an offence committed in the United Kingdom which is a fixed-penalty offence under the Road Traffic Offenders Act 1988; or

.2 -

an offence committed in the United Kingdom or abroad which is dealt with by a procedure substantially similar to that for such a fixed-penalty offence; or

.3 -

an offence whose main ingredient is the unlawful parking of a motor vehicle.

Referral Fees

rC10 -

You must not pay or receive referral fees.

Guidance on Rule rC10 and their relationship to CD2, CD3, CD4 and CD5

gC29 -

Making or receiving payments in order to procure or reward the referral to you by an intermediary of professional instructions is inconsistent with your obligations under CD2 and/or CD3 and/or CD4 and may also breach CD5. 

gC30 -

Moreover:

.1 -

where public funding is in place, the Legal Aid Agency’s Unified Contract Standard Terms explicitly prohibit contract-holders from making or receiving any payment (or any other benefit) for the referral or introduction of a client , whether or not the lay client knows of, and consents to, the payment; 

.2 -

whether in a private or publicly funded case, a referral fee to which the client has not consented may constitute a bribe and therefore a criminal offence under the Bribery Act 2010;

.3 -

referral fees and inducements (as defined in the Criminal Justice and Courts Act 2015) are prohibited where they relate to a claim or potential claim for damages for personal injury or death or arise out of circumstances involving personal injury ordeath personal injury claims: section 56 Legal Aid, Sentencing and Punishmentof Offenders Act 2012 and section 58 Criminal Justice and Courts Act 2015

gC31 -

Rule C10 does not prohibit proper expenses that are not a reward for referring work, such as genuine and reasonable payments for:

.1 -

clerking and administrative services (including where these are outsourced);

.2 -

membership subscriptions to ADR bodies that appoint or recommend a person to provide mediation, arbitration or adjudication services; or

.3 -

advertising and publicity, which are payable whether or not any work is referred. However, the fact that a fee varies with the amount of work received does not necessarily mean that that it is a referral fee , if it is genuinely for a marketing service from someone who is not directing work to one provider rather than another, depending on who pays more.

Undertakings

rC11 -

You must within an agreed timescale or within a reasonable period of time comply with any undertaking you give in the course of conducting litigation.

Guidance on Rule C11

gC33 -

You should ensure your insurance covers you in respect of any liability incurred in giving an undertaking.

Discrimination

rC12 -

You must not discriminate unlawfully against, victimise or harass any other person on the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, gender re-assignment, sexual orientation, marital or civil partnership status, disability, age, religion or belief, or pregnancy and maternity.

Guidance on Rule C12

gC34 -

Rules C110 and associated Guidance are also relevant to equality and diversity. The BSB's Supporting Information on the BS Handbook Equality Rules are available on the BSB website: https://www.barstandardsboard.org.uk/media/1562168/bsb_equality_rules_handbook_corrected.pdf

Foreign work

rC13 -

In connection with any foreign work you must comply with any applicable rule of conduct prescribed by the law or by any national or local bar of:

.1 -

the place where the work is or is to be performed; and

.2 -

the place where any proceedings or matters to which the work relates are taking place or contemplated;

unless such rule is incosistent with any requirement of the Core Duties.

rC14 -

If you solicit work in any jurisdiction outside England and Wales, you must not do so in a manner which would be prohibited if you were a member of the local bar.

Guidance on Rules C13 and C14

gC35 -

When you are engaged in cross border activities within a CCBE State other than the UK, you must comply with the rules at 2.D5 which implement the part of the Code of Conduct for European Lawyers not otherwise covered by this Handbook as well as with any other applicable rules of conduct relevant to that particular CCBE State . It is your responsibility to inform yourself as to any applicable rules of conduct.

C3 - You and Your Client

Outcomes

oC10 -

Clients receive a competent standard of work and service.

oC11 -

Clients’ best interests are protected and promoted by those acting for them.

oC12 -

BSB authorised persons do not accept instructions from clients where there is a conflict  between their own interests and the clients’ or where there is a conflict between one or more clients except when permitted in this Handbook.

oC13 -

Clients know what to expect and understand the advice they are given.

oC14 -

Care is given to ensure that the interests of vulnerable clients are taken into account and their needs are met.

oC15 -

Clients have confidence in those who are instructed to act on their behalf.

oC16 -

Instructions are not accepted, refused, or returned in circumstances which adversely affect the administration of justice, access to justice or (so far as compatible with these) the best interests of the client .

oC17 -

Clients and BSB authorised persons and authorised (non-BSB) individuals and BSB regulated managers are clear about the circumstances in which instructions may not be accepted or may or must be returned.

oC18 -

Clients are adequately informed as to the terms on which work is to be done.

oC19 -

Clients understand how to bring a complaint and complaints are dealt with promptly, fairly, openly and effectively.

oC20 -

Clients understand who is responsible for work done for them

Rules

Best interests of each client, provision of a competent standard of work and confidentiality
rC15 -

Your duty to act in the best interests of each client (CD2), to provide a competent standard of work and service to each client (CD7) and to keep the affairs of each client confidential (CD6) includes the following obligations:

.1 -

you must promote fearlessly and by all proper and lawful means the client’s best interests;

.2 -

you must do so without regard to your own interests or to any consequences to you (which may include, for the avoidance of doubt, you being required to take reasonable steps to mitigate the effects of any breach of this Handbook );

.3 -

you must do so without regard to the consequences to any other person (whether to your professional client , employer or any other person);

.4 -

you must not permit your professional client , employer or any other person to limit your discretion as to how the interests of the client can best be served; and

.5 -

you must protect the confidentiality of each client's affairs, except for such disclosures as are required or permitted by law or to which your client gives informed consent.

rC16 -

Your duty to act in the best interests of each client (CD2) is subject to your duty to the court (CD1) and to your obligations to act with honesty, and integrity (CD3) and to maintain your independence (CD4).

Guidance on Rules C15 and C16 and their relationship to CD2, CD6 and CD7
gC36 -

Your duty is to your client , not to your professional client or other intermediary (if any).

gC37 -

Rules rC15 and rC16 are expressed in terms of the interests of each client . This is because you may only accept instructions to act for more than one client if you are able to act in the best interests of each client as if that client were your only client , as CD2 requires of you. See, further, Rule C17 on the circumstances when you are obliged to advise your client to seek other legal representation and Rules C21.2 and C21.3 on conflicts of interest and the guidance to those rules at gC69.

gC38 -

CD7 requires not only that you provide a competent standard of work but also a competent standard of service to your client. Rule C15 is not exhaustive of what you must do to ensure your compliance with CD2 and CD7. By way of example, a competent standard of work and of service also includes:

.1 -

treating each client with courtesy and consideration; and

.2 -

seeking to advise your client , in terms they can understand; and

.3 -

taking all reasonable steps to avoid incurring unnecessary expense; and

.4 -

reading your instructions promptly. This may be important if there is a time limit or limitation period. If you fail to read your instructions promptly, it is possible that you will not be aware of the time limit until it is too late.

gC39 -

In order to be able to provide a competent standard of work, you should keep your professional knowledge and skills up to date, regularly take part in professional development and educational activities that maintain and further develop your competence and performance and, where you are a BSB authorised body or a manager of such body, you should take reasonable steps to ensure that managers and employees within your organisation undertake such training . Merely complying with the minimum Continuing Professional Development requirements may not be sufficient to comply with Rule C15. You should also ensure that you comply with any specific training requirements of the Bar Standards Board before undertaking certain activities – for example, you should not attend a police station to advise a suspect or interviewee a s to the handling and conduct of police interviews unless you have complied with such training requirements as may be imposed by the Bar Standards Board in respect of such work. Similarly, you should not undertake public access work without successfully completing the required training specified by the Bar Standards Board .

gC40 -

In addition to Guidance C38 above, a BSB authorised body or a manager of such body should ensure that wor k is allocated appropriately, to managers and/or employees with the appropriate knowledge and expertise to undertake such work.

gC41 -

You should remember that your client may not be familiar with legal proceedings and may find them difficult and stressful. You should do what you reasonably can to ensure that the client understands the process and what to expect from it and from you. You should also try to avoid any unnecessary distress for your client . This is particularly important where you are dealing with a vulnerable client .

gC42 -

The duty of confidentiality (CD6) is central to the administration of justice. Clients who put their confidence in their legal advisers must be able to do so in the knowledge that the information they give, or which is given on their behalf, will stay confidential. In normal circumstances, this information will be privileged and not disclosed to a court . CD6, rC4 and Guidance C8 and C11 to C13 provide further information.

gC43 -

Rule C15.5 acknowledges that your duty of confidentiality is subject to an exception if disclosure is required or permitted by law. For example, you may be obliged to disclose certain matters by the Proceeds of Crime Act 2002. Disclosure in those circumstances would not amount to a breach of CD6 or Rule C15.5 In other circumstances, you may only make disclosure of confidential information where your client gives informed consent to the disclosure. See the Guidance to Rule C21 at gC68 for an example of circumstances where it may be appropriate for you to seek such consent.

gC44 -

There may be circumstances when your duty of confidentiality to your client conflicts with your duty to the court . Rule C4 and Guidance C8 and C11 to C13 provide further information.

gC45 -

Similarly, there may be circumstances when your duty of confidentiality to your client conflicts with your duty to your regulator. Rule C64 and Guidance C92 to C93 in respect of that rule provide further information. In addition, Rule C66 may also apply.

gC46 -

If you are a pupil of, or are devilling work for, a self-employed barrister , Rule C15 applies to you as if the client of the self-employed barrister was your own client.

gC47 -

The section You and Your Practice, at 2.C5, provides for duties regarding the systems and procedures you must put in place and enforce in order to ensure compliance with Rule C15.5.

gC48 -

If you are an authorised individual or a manager working in a BSB authorised body your personal duty to act in the best interests of your client requires you to assist in the redistribution of client files and otherwise assisting to ensure each client's interests are protected in the event that the BSB authorised body itself is unable to do so for whatever reason (for example, insolvency).

rC17 -

Your duty to act in the best interests of each client (CD2) includes a duty to consider whether the client’s best interests are served by different legal representation, and if so, to advise the client to that effect.

Guidance on Rule C17
gC49 -

Your duty to comply with Rule C17 may require you to advise your client that in their best interests they should be represented by:

.1 -

a different advocate or legal representative, whether more senior or more junior than you, or with different experience from yours;

.2 -

more than one advocate or legal representative;

.3 -

fewer advocates or legal representatives than have been instructed; or

.4 -

in the case where you are acting through a professional client , different solicitors.

gC50 -

Specific rules apply where you are acting on a public access basis, which oblige you to consider whether solicitors should also be instructed. As to these see the public access rules at Section 2.D2 and further in respect of BSB regulated bodies Rule S28 and the associated guidance.

gC51 -

CD2 and Rules C15 and C17 require you, subject to Rule C16, to put your client’s interests ahead of your own and those of any other person. If you consider that your professional client , another solicitor or intermediary , another barrister , or any other person acting on behalf of your client has been negligent, you should ensure that your client is advised of this.

rC18 -

Your duty to provide a competent standard of work and service to each client (CD7) includes a duty to inform your professional client, or your client if instructed by a client, as far as reasonably possible in sufficient time to enable appropriate steps to be taken to protect the client’s interests, if:

.1 -

it becomes apparent to you that you will not be able to carry out the instructions within the time requested, or within a reasonable time after receipt of instructions; or

.2 -

there is an appreciable risk that you may not be able to undertake the instructions.

Guidance on Rule C18
gC52 -

For further information about what you should do in the event that you have a clash of listings, please refer to our guidance which can be accessed on the Bar Standards Board’s website at https://www.barstandardsboard.org.uk/regulatory-requirements/bsb-handbook/code-guidance/

Not misleading clients and potential clients
rC19 -

If you supply, or offer to supply, legal services , you must not mislead, or cause or permit to be misled, any person to whom you supply, or offer to supply, legal services about:

.1 -

the nature and scope of the legal services which you are offering or agreeing to supply;

.2 -

the terms on which the legal services will be supplied, who will carry out the work and the basis of charging;

.3 -

who is legally responsible for the provision of the services;

.4 -

whether you are entitled to supply those services and the extent to which you are regulated when providing those services and by whom; or

Guidance on Rule C19
gC53 -

The best interests of clients (CD2) and public confidence in the profession (CD5) are undermined if there is a lack of clarity as to whether services are regulated, who is supplying them, on what terms, and what redress clients have and against whom if things go wrong. Rule C19 may potentially be infringed in a broad variety of situations. You must consider how matters will appear to the client .

gC54 -

Clients may, by way of example, be misled if self-employed barristers were to share premises with solicitors or other professionals without making sufficiently clear to clients that they remain separate and independent from one another and are not responsible for one another's work.

gC55 -

Likewise, it is likely to be necessary to make clear to clients that any entity established as a "ProcureCo" is not itself able to supply reserved legal activities and is not subject to regulation by the Bar Standards Board .

gC56 -

A set of chambers dealing directly with unsophisticated lay clients might breach Rule C19 if its branding created the appearance of an entity or partnership and it failed to explain that the members of chambers are, in fact, self-employed individuals who are not responsible for one another's work.

gC57 -

Knowingly or recklessly publishing advertising material which is inaccurate or likely to mislead could also result in you being in breach of Rule C19.  You should be particularly careful about making comparisons with other persons as these may often be regarded as misleading.

gC58 -

If you carry out public access work but are not authorised to conduct litigation , you would breach Rule C19 if you caused or permitted your client to be misled into believing that you are entitled to, or will, provide services that include the conduct of litigation on behalf of your client .

gC59 -

If you are a self-employed barrister , you would, for example, likely be regarded as having breached Rule C19 if you charged at your own hourly rate  for work done by a devil or pupil .  Moreover, such conduct may well breach your duty to act with honesty and integrity (CD3).

gC60 -

If you are an unregistered barrister , you would breach Rule C19 if you misled your client into thinking that you were providing legal services to them as a barrister or that you were subject to the same regulation as a practising barrister . You would also breach the rule if you implied that you were covered by insurance if you were not, or if you suggested that your clients could seek a remedy from the Bar Standards Board or the Legal Ombudsman if they were dissatisfied with the services you provided.  You should also be aware of the rules set out in Section D5 of this Code of Conduct and the additional guidance for unregistered barristers available on the Bar Standards Board website which can be accessed here: https://www.barstandardsboard.org.uk/regulatory-requirements/the-code-of-conduct/code-guidance/

gC61 -

Rule C19.3 is particularly relevant where you act in more than one capacity, for example as a BSB authorised individual as well as a manager or employee of an authorised (non BSB) body.  This is because you should make it clear to each client in what capacity you are acting and, therefore, who has legal responsibility for the provision of the services.

gC62 -

If you are a pupil , you should not hold yourself out as a member of chambers or permit your name to appear as such. You should ensure the client understands your status.

gC63 -

A number of other rules impose positive obligations on you, in particular circumstances, to make clear your regulatory status and the basis and terms on which you are acting. See, for example, rule C23 and gC74.

Personal responsibility
rC20 -

Where you are a BSB authorised individual , you are personally responsible for your own conduct and for your professional work. You must use your own professional judgment in relation to those matters on which you are instructed and be able to justify your decisions and actions.  You must do this notwithstanding the views of your client , professional client , employer or any other person.

Guidance on Rule C20
gC64 -

It is fundamental that BSB authorised individuals and authorised (non-BSB) individuals are personally responsible for their own conduct and for their own professional work, whether they are acting in a self-employed or employed capacity (in the case of BSB authorised individuals ) or as an employee or manager of a BSB authorised body (in the case of authorised (non-BSB) individuals). 

gC65 -

It is fundamental that BSB authorised individuals and authorised (non-BSB) individuals are personally responsible for their own conduct and for their own professional work, whether they are acting in a self-employed or employed capacity (in the case of BSB authorised individuals )or as an employee or manager of a BSB authorised body (in the case of authorised (non-BSB) individuals)

gC66 -

You are responsible for the service provided by all those who represent you in your dealings with your client , including your clerks or any other employees or agents.

gC67 -

Nothing in this rule or guidance prevents a BSB authorised body from contracting on the basis that any civil liability for the services provided by a BSB regulated individual lies with the BSB authorised body and the BSB regulated individual is not to be liable.  However, any such stipulation as to civil liability does not affect the regulatory obligations of the BSB regulated individual including (but not limited to) that of being personally responsible under Rule C20 for the professional judgments made.

gC68 -

See, further, guidance to Rule C19, as regards work by pupils and devils Rule C15, gC124 and Rule C85 (on outsourcing). 

Accepting instructions
rC21 -

You must not accept instructions to act in a particular matter if:

.1 -

due to any existing or previous instructions you are not able to fulfil your obligation to act in the best interests of the prospective client ; or

.2 -

there is a conflict of interest between your own personal interests and the interests of the prospective client in respect of the particular matter; or

.3 -

there is a conflict of interest between the prospective client and one or more of your former or existing clients in respect of the particular matter unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances; or

.4 -

there is a real risk that information confidential to another former or existing client , or any other person to whom you owe duties of confidence, may be relevant to the matter, such that if, obliged to maintain confidentiality, you could not act in the best interests of the prospective client, and the former or existing client or person to whom you owe that duty does not give informed consent to disclosure of that confidential information; or

.5 -

your instructions seek to limit your ordinary authority or discretion in the conduct of proceedings in court ; or

.6 -

your instructions require you to act other than in accordance with law or with the provisions of this Handbook ; or

.7 -

you are not authorised and/or otherwise accredited to perform the work required by the relevant instruction ; or

.8 -

you are not competent to handle the particular matter or otherwise do not have enough experience to handle the matter; or

.9 -

you do not have enough time to deal with the particular matter, unless the circumstances are such that it would nevertheless be in the client’s best interests for you to accept; or

.10 -

there is a real prospect that you are not going to be able to maintain your independence.

Guidance on Rule C21
gC69 -

Rules C21.2, C21.3 and C21.4 are intended to reflect the law on conflict of interests and confidentiality and what is required of you by your duty to act in the client’s best interests (CD2), independently (CD4), and maintaining client confidentiality (CD6).  You are prohibited from acting where there is a conflict of interest between your own personal interests and the interests of a prospective client .  However, where there is a conflict of interest between an existing client or clients and a prospective client or clients or two or more prospective clients, you may be entitled to accept instructions or to continue to act on a particular matter where you have fully disclosed to the relevant clients and prospective clients (as appropriate) the extent and nature of the conflict; they have each provided their informed consent to you acting; and you are able to act in the best interests of each client and independently as required by CD2 and CD4.

gC70 -

Examples of where you may be required to refuse to accept instructions in accordance with Rule C21.7 include:

.1 -

where the instructions relate to the provision of litigation services and you have not been authorised to conduct litigation in accordance with the requirements of this Handbook ; and

.2 -

where the matter involves criminal advocacy and you are not (or, where you are a BSB authorised body , none of your managers or employees are) accredited at the correct QASA level to undertake such work in accordance with the Quality Assurance Scheme for Advocates Rules set out at 2.C3; and

.3 -

where the matter would require you to conduct correspondence with parties other than your client (in the form of letters, faxes, emails or the like), you do not have adequate systems, experience or resources for managing appropriately such correspondence and/or you do not have adequate insurance in place in accordance with Rule C75 which covers, amongst other things, any loss suffered by the client as a result of the conduct of such correspondence.

gC71 -

Competency and experience under Rule C21.8 includes your ability to work with vulnerable clients

gC72 -

Rule C21.9 recognises that there may be exceptional circumstances when instructions are delivered so late that no suitable, competent advocate would have adequate time to prepare. In those cases you are not required to refuse instructions as it will be in the client’s best interests that you accept. Indeed, if you are obliged under the cab rank rule to accept the instructions, you must do so.

gC73 -

Rule C21.10 is an aspect of your broader obligation to maintain your independence (CD4).  Your ability to perform your duty to the court (CD1) and act in the best interests of your client (CD2) may be put at risk if you act in circumstances where your independence is compromised.  Examples of when you may not be able to maintain your independence include appearing as an advocate in a matter in which you are likely to be called as a witness (unless the matter on which you are likely to be called as a witness is peripheral or minor in the context of the litigation as a whole and is unlikely to lead to your involvement in the matter being challenged at a later date).

However, if you are planning to withdraw from a case because it appears that you are likely to be a witness on a material question of fact, you should only withdraw if you can do so without jeopardising the client ’s interests.

gC74 -

Where the instructions relate to public access or licensed access work and you are a self-employed barrister you will also need to have regard to the relevant rules at 2.D2.  If you are a BSB authorised body, you should have regard to the guidance to Rule S28.

Defining terms or basis on which instructions are accepted
rC22 -

Where you first accept instructions to act in a matter:

.1 -

you must, subject to Rule C23, confirm in writing acceptance of the instructions and the terms and/or basis on which you will be acting, including the basis of charging;

.2 -

where your instructions are from a professional client , the confirmation required by .1 must be sent to the professional client;

.3 -

where your instructions are from a client , the confirmation required by rC22.1 must be sent to the client.

.4 -

if you are a BSBauthorised body, you must ensure that the terms under which you acceptinstructions from clients includeconsent from clients to disclose andgive control of files to the BarStandards Board or its agent in circumstances where the conditions in rS113.5are met.

rC23 -

In the event that, following your acceptance of the instructions in accordance with Rule C22, the scope of the instructions is varied by the relevant client (including where the client instructs you on additional aspects relating to the same matter), you are not required to confirm again in writing acceptance of the instructions or the terms and/or basis upon which you will be acting.  In these circumstances, you will be deemed to have accepted the instructions when you begin the work, on the same terms or basis as before, unless otherwise specified.   

rC24 -

You must comply with the requirements set out in Rules C22 and C23 before doing the work  unless that is not reasonably practicable, in which case you should do so as soon as reasonably practicable.

Guidance to Rules C22 to C24
gC75 -

Compliance with the requirement in Rule C22 to set out the terms and/or basis upon which you will be acting may be achieved by including a reference or link to the relevant terms in your written communication of acceptance.  You may, for example, refer the client or professional client (as the case may be)to the terms of service set out on your website or to standard terms of service set out on the Bar Council’s website (in which regard, please also refer to the guidance on the use of the standard terms of service which can be found here: http://barcouncil.org.uk/media/182287/guide_to_contractual_terms.pdf/. Where you agree to do your work on terms and conditions that have been proposed to you by the client or by the professional client , you should confirm in writing that that is the basis on which your work is done. Where there are competing sets of terms and conditions, which terms have been agreed and are the basis of your retainer will be a matter to be determined in accordance with the law of contract. 

gC76 -

Your obligation under Rule C23 is to ensure that the basis on which you act has been defined, which does not necessarily mean governed by your own contractual terms.  In circumstances where Rule C23 applies, you should take particular care to ensure that the client is clear about the basis for charging for any variation to the work where it may be unclear. You must also ensure that you comply with the requirements of the Provision of Services Regulations 2009 (http://www.legislation.gov.uk/ukdsi/2009/9780111486276/contents).  See, further, Rule C19 (not misleading clients or prospective clients) and the guidance to that rule at gC52 to gC62.

gC77 -

If you are a self-employed barrister a clerk may confirm on your behalf your acceptance of instructions in accordance with Rules C22 and C23 above.

gC78 -

When accepting instructions , you must also ensure that you comply with the complaints handling rules set out in Section 2.D.

gC79 -

When accepting instructions in accordance with Rule C22, confirmation by email will satisfy any requirement for written acceptance.

gC80 -

You may have been instructed in relation to a discrete and finite task, such as to provide an opinion on a particular issue, or to provide ongoing services, for example, to conduct particular litigation. Your confirmation of acceptance of instructions under Rule C22 should make clear the scope of the instructions you are accepting, whether by cross-referring to the instructions , where these are in writing or by summarising your understanding of the scope of work you are instructed to undertake.

gC81 -

Disputes about costs are one of the most frequent complaints.  The provision of clear information before work starts is the best way of avoiding such complaints.  The Legal Ombudsman has produced a useful guide "An Ombudsman's view of good costs service" which can be found here: http://www.legalombudsman.org.uk/downloads/documents/publications/Ombudsman-view-good-costs-service.pdf.

gC82 -

Where the instructions relate to public access or licensed access work and you are a self-employed barrister, you will also need to have regard to the relevant rules at 2.D2  If you are a BSB authorised body, you should have regard to the guidance to Rule S28.

Returning instructions
rC25 -

Where you have accepted instructions to act but one or more of the circumstances set out in Rules C21.1 to C21.10 above then arises, you must cease to act and return your instructions promptly. In addition, you must cease to act and return your instructions if:

.1 -

in a case funded by the Legal Aid Agency as part of Criminal Legal Aid or Civil Legal Aid it has become apparent to you that this funding has been wrongly obtained by false or inaccurate information and action to remedy the situation is not immediately taken by your client ; or

.2 -

the client refuses to authorise you to make some disclosure to the court which your duty to the court requires you to make; or

.3 -

the client refuses to authorise you to make some disclosure to the court which your duty to the court requires you to make; or

rC26 -

You may cease to act on a matter on which you are instructed and return your instructions if:

.1 -

your professional conduct is being called into question; or

.2 -

the client consents; or

.3 -

you are a self-employed barrister and:

.a -

despite all reasonable efforts to prevent it, a hearing becomes fixed for a date on which you have already entered in your professional diary that you will not be available; or

.b -

illness, injury, pregnancy, childbirth, a bereavement or a similar matter makes you unable reasonably to perform the services required in the instructions ; or

.c -

you are unavoidably required to attend on jury service;

.4 -

you are a BSB authorised body and the only appropriate authorised individual(s) are unable to continue acting on the particular matter due to one or more of the grounds referred to at Rules C26.3.a to C26.3.c above occurring;

.5 -

you do not receive payment when due in accordance with terms agreed, subject to Rule C26.7 (if you are conducting litigation) and in any other case subject to your giving reasonable notice requiring the non-payment to be remedied and making it clear to the client in that notice that failure to remedy the non-payment may result in you ceasing to act and returning your instructions in respect of the particular matter; or

.6 -

you become aware of confidential or privileged information or documents of another person which relate to the matter on which you are instructed; or

.7 -

if you are conducting litigation, and your client does not consent to your ceasing to act, your application to come off the record has been granted; or

.8 -

there is some other substantial reason for doing so (subject to Rules C27 to C29 below).

Guidance on Rule C26
gC83 -

In deciding whether to cease to act and to return existing instructions in accordance with Rule C26, you should, where possible and subject to your overriding duty to the court , ensure that the client is not adversely affected because there is not enough time to engage other adequate legal assistance.

gC84 -

If you are working on a referral basis and your professional client withdraws, you are no longer instructed and cannot continue to act unless appointed by the court , or you otherwise receive new instructions. You will not be bound by the cab rank rule if appointed by the court . For these purposes working on a “referral basis” means where a professional client instructs a BSB authorised individual to provide legal services on behalf of one of that professional client’s own clients;

gC85 -

You should not rely on Rule C26.3 to break an engagement to supply legal services so that you can attend or fulfil a non-professional engagement of any kind other than those indicated in Rule C26.3.

gC86 -

When considering whether or not you are required to return instructions in accordance with Rule C26.6 you should have regard to relevant case law including: English & American Insurance Co Ltd & Others -v- Herbert Smith; ChD 1987; (1987) NLJ 148 and Ablitt -v- Mills & Reeve (A Firm) and Another; ChD (Times, 24-Oct-1995).

gC87 -

If a fundamental change is made to the basis of your remuneration, you should treat such a change as though your original instructions have been withdrawn by the client and replaced by an offer of new instructions on different terms.  Accordingly:

.1 -

you must decide whether you are obliged by Rule C29 to accept the new instructions; 

.2 -

if you are obliged under Rule C29 to accept the new instructions, you must do so;

.3 -

if you are not obliged to accept the new instructions, you may decline them;

.4 -

if you decline to accept the new instructions in such circumstances, you are not to be regarded as returning your instructions, nor as withdrawing from the matter, nor as ceasing to act, for the purposes of Rules C25 to C26, because the previous instructions have been withdrawn by the client .

rC27 -

Notwithstanding the provisions of Rules C25 and C26, you must not:

.1 -

cease to act or return instructions without either:

.a -

obtaining your client’s consent; or

.b -

clearly explaining to your client or your professional client the reasons for doing so; or

.2 -

return instructions to another person without the consent of your client or your professional client .

Requirement not to discriminate
rC28 -

You must not withhold your services or permit your services to be withheld:

.1 -

on the ground that the nature of the case is objectionable to you or to any section of the public;

.2 -

on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to you or to any section of the public;

.3 -

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.

Guidance on Rule C28
gC88 -

As a matter of general law you have an obligation not to discriminate unlawfully as to those to whom you make your services available on any of the statutorily prohibited grounds such as gender or race.  See https://www.barstandardsboard.org.uk/about-bar-standards-board/equality-and-diversity/equality-and-diversity-rules-of-the-code-of-conduct/ and https://www.barstandardsboard.org.uk/media/1562168/bsb_equality_rules_handbook_corrected.pdf for guidance as to your obligations in respect of equality and diversity. This rule of conduct is concerned with a broader obligation not to withhold your services on grounds that are inherently inconsistent with your role in upholding access to justice and the rule of law and therefore in this rule “discriminate” is used in this broader sense.  This obligation applies whether or not the client is a member of any protected group for the purposes of the Equality Act 2010. For example, you must not withhold services on the ground that any financial support which may properly be given to the prospective client for the proceedings in question will be available as part of the Criminal Legal Aid and Civil Legal Aid.

The ‘Cab-rank’ rule
rC29 -

If you receive instructions from a professional client , and you are:

.1 -

a self-employed barrister instructed by a professional client ; or

.2 -

an authorised individual working within a BSB authorised body ; or

.3 -

a BSB authorised body and the instructions seek the services of a named authorised individual working for you,

and the instructions are appropriate taking into account the experience, seniority or and field of practice of yourself or (as appropriate) of the  named authorised individual you must, subject to Rule C30 below, accept the instructions addressed specifically to you, irrespective of:

.a -

the identity of the client ;

.b -

the nature of the case to which the instructions relate;

.c -

whether the client is paying privately or is publicly funded; and

.d -

any belief or opinion which you may have formed as to the character, reputation, cause, conduct, guilt or innocence of the client .

rC30 -

The cab rank rule C29 does not apply if:

.1 -

you are required to refuse to accept the instructions pursuant to Rule C21; or

.2 -

accepting the instructions would require you or the named authorised individual to do something other than in the course of their ordinary working time or to cancel a commitment already in their diary; or

.3 -

the potential liability for professional negligence in respect of the particular matter could exceed the level of professional indemnity insurance which is reasonably available and likely to be available in the market for you to accept; or

.4 -

you are a Queen's Counsel, and the acceptance of the instructions would require you to act without a junior in circumstances where you reasonably consider that the interests of the client require that a junior should also be instructed; or

.5 -

accepting the instructions would require you to do any foreign work ; or

.6 -

accepting the instructions would require you to act for a foreign lawyer (other than a European lawyer, a lawyer from a country that is a member of EFTA, a solicitor or barrister of Northern Ireland or a solicitor or advocate under the law of Scotland); or

.7 -

the professional client:

.a -

is not accepting liability for your fees; or

.b -

represents, in your reasonable opinion, an unacceptable credit risk; or

.c -

is instructing you as a lay client and not in their capacity as a professional client ; or

.8 -

you have not been offered a proper fee for your services (except that you shall not be entitled to refuse to accept instructions on this ground if you have not made or responded to any fee proposal within a reasonable time after receiving the instructions ); or

.9 -

except where you are to be paid directly by (i) the Legal Aid Agency as part of the Community Legal Service or the Criminal Defence Service or (ii) the Crown Prosecution Service:

.a -

your fees have not been agreed (except that you shall not be entitled to refuse to accept instructions on this ground if you have not taken reasonable steps to agree fees within a reasonable time after receiving the instructions;

.b -

having required your fees to be paid before you accept the instructions , those fees have not been paid.

.c -

accepting the instructions would require you to act other than on (A) the Standard Contractual Terms for the Supply of Legal Services by Barristers to Authorised Persons 2012 as published on the Bar Council's website; or (B) if you publish standard terms of work, on those  standard terms of work.

Guidance on Rule C29 and C30
gC89 -

Rule C30 means that you would not be required to accept instructions to, for example, conduct litigation or attend a police station in circumstances where you do not normally undertake such work or, in the case of litigation, are not authorised to undertake such work.

gC90 -

In determining whether or not a fee is proper for the purposes of Rule 30.8, regard shall be had to the following:

.1 -

the complexity length and difficulty of the case;

.2 -

your ability, experience and seniority; and

.3 -

the expenses which you will incur.

gC91 -

Further, you may refuse to accept instructions on the basis that the fee is not proper if the instructions are on the basis that you will do the work under a conditional fee agreement or damages based agreement.

91A -

Examples of when you might reasonably conclude (subject to the following paragraph) that a professional client represents an unacceptable credit risk for the purposes of Rule C30.7.b include:

 

.1 Where they are included on the Bar Council’s List of Defaulting Solicitors;

.2 Where to your knowledge a barrister has obtained a judgment against a professional client , which remains unpaid;

.3 Where a firm or sole practitioner is subject to insolvency proceedings, an individual voluntary arrangement or partnership voluntary arrangement; or

.4 Where there is evidence of other unsatisfied judgments that reasonably call into question the professional client’s ability to pay your fees.

 

Even where you consider that there is a serious credit risk, you should not conclude that the professional client represents an unacceptable credit risk without first considering alternatives. This will include considering whether the credit risk could be mitigated in other ways, for example by seeking payment of the fee in advance or payment into a third party payment service as permitted by rC74, rC75 and associated guidance.

Quality Assurance Scheme for Advocates Rules

Scope of QASA
rC31 -

Subject to Rule C32, you must not undertake criminal advocacy unless you have provisional accreditation or full accreditation in accordance with these QASA Rules and with the QASA Handbook .

rC32 -

Subject to Rule C32, you must not undertake criminal advocacy unless you have provisional accreditation or full accreditation in accordance with these QASA Rules and with the QASA Handbook .

.1 -

in hearings which primarily involve advocacy which is outside of the definition of criminal advocacy ; or

.2 -

if they have been instructed specifically as a result of their specialism in work outside of the definition of criminal advocacy .

rC33 -

You shall only undertake criminal advocacy in hearings which you are satisfied fall within the QASA level at which you are accredited, or any QASA level below the same, unless you are satisfied that you are competent to accept instructions for a case at a higher QASA level strictly in accordance with the criteria prescribed in the QASA Handbook .

Provisional accreditation
rC34 -

If you are granted provisional accreditation , you must apply to convert this to full accreditation within 12 or 24 months of the date on which your provisional accreditation was granted.

Full accreditation
rC35 -

If you are granted full accreditation , it will be valid for 5 years from the date on which it was granted.

General provisions relating to applications for registration, progression or re-accreditation
rC36 -

You may apply for registration , progression or re-accreditation under these QASA Rules . In support of an application you shall submit such information as may be prescribed by the QASA . This will include:

.1 -

completing the relevant application form supplied by the Bar Standards Board and submitting it to the Bar Standards Board ;

.2 -

submitting such information in support of the application as may be prescribed by the QASA . This will include all of the criminal advocacy evaluation forms that you have obtained; and

.3 -

paying the appropriate fee in the amount determined in accordance with the Bar Standards Board’s published fees policy.

rC37 -

An application will only have been made once the Bar Standards Board has received the application form completed in full, together with all information required in support of the application and confirmation from you in the form of a declaration that the information contained within, or submitted in support of, the application is full and accurate.  

rC38 -

You are personally responsible for the contents of your application and any information submitted to the Bar Standards Board by you or on your behalf, and you must not submit (or cause or permit to be submitted on your behalf) information to the Bar Standards Board which you do not believe is full and accurate.

rC39 -

On receipt of an application, the Bar Standards Board shall decide whether to grant or refuse the application, and shall notify you accordingly, giving reasons for any decision to refuse the application.  This decision will take effect when it has been communicated to the barrister concerned.

rC40 -

Before reaching a decision on the application, the Bar Standards Board may appoint an independent assessor to conduct an assessment of your competence to conduct criminal advocacy at the relevant QASA level .

Registration for QASA
rC41 -

In order to be accredited under QASA barrister s must first apply for registration . In support of an application you shall submit such information as may be prescribed by the QASA .

QASA Level 1
.1 -

If you apply for registration at QASA level 1 and your application is successful, you will be awarded full accreditation at QASA level 1.

QASA Levels 2 to 4
.2 -

If you apply for registration at QASA levels 2, 3 or 4 and your application is successful, you will be awarded Provisional accreditation which will be valid for 24 months.

.3 -

You must apply to convert your provisional accreditation to full accreditation within 24 months.

.4 -

You must be assessed in your first effective criminal trials at your QASA level and submit the prescribed number of completed criminal advocacy evaluation form s confirming that you are competent in accordance with the competence framework detailed in the QASA Handbook .

.5 -

Your application must include all completed criminal advocacy evaluation forms obtained by you in effective trials.

.6 -

If your application is successful you will be awarded full accreditation .

.7 -

Subject to Rule C41.8, if your application for full accreditation is unsuccessful, you shall be granted provisional accreditation at the QASA level below and shall be required to apply to convert this to full accreditation at that lower QASA level in accordance with Rules C41.3 to C41.5.

.8 -

If your application for full accreditation at QASA level 2 is unsuccessful, you shall be granted accreditation at QASA level 1.

Barristers not undertaking trials
.9 -

If you do not intend to undertake criminal trials you may apply for registration at QASA level 2. If your application is successful, you will be awarded provisional accreditation . You must be assessed via an approved assessment organisation within 24 months.

.10 -

If your application for full accreditation is successful you shall be awarded full accreditation and will be permitted to undertake non-trial hearings up to QASA level 3 and trials at QASA level 1.

.11 -

Once you have full accreditation , if you wish to undertake trials at QASA level 2 you must inform the BSB of your intention and comply with Rules C42.2 to Rules C42.5.

Barristers who took silk between 2010 and 2013
.12 -

If you took silk between 2010 and 2013 inclusive you can register through the modified entry arrangements set out in paragraph 2.38 of the QASA Handbook .

Progression
rC42 -

If you have full accreditation , you may apply for accreditation at the next higher QASA level to your current QASA level .

.1 -

Progression to QASA level 2

.2 -

If you wish to progress to QASA level 2 you must first obtain provisional accreditation at QASA level 2 by notifying the Bar Standards Board of your intention to progress.

.3 -

Your provisional accreditation will be valid for 24 months. In order to convert this to full accreditation you must be assessed in your first effective criminal trials at QASA level 2 and submit the prescribed number of completed criminal advocacy evaluation forms confirming that you are competent in QASA level 2 trials in accordance with the competence framework detailed in the QASA Handbook.

.4 -

Your application must include all completed criminal advocacy evaluation forms obtained by you in effective trials.

.5 -

Where your application is successful, you shall be granted full accreditation at QASA level 2, which is valid for 5 years from the date of issue.

Progression to QASA level 3 and 4
Stage 1
.6 -

You must first apply for provisional accreditation at the next higher QASA level to your current QASA level . In order to apply for provisional accreditation , you must submit the prescribed number of criminal advocacy evaluation forms confirming that you are very competent at your current QASA level in accordance with the competence framework detailed in the QASA Handbook .

.7 -

Your application must include all completed criminal advocacy evaluation forms obtained by you in effective trials. These should be obtained within a 12 month period.

.8 -

If your application is successful you will be awarded provisional accreditation .

Stage 2
.9 -

Your provisional accreditation will be valid for 12 months. You must apply to convert your provisional accreditation to full accreditation before your provisional accreditation expires.

.10 -

You must be assessed in your first effective criminal trials at your new QASA level and submit the prescribed number of completed criminal advocacy evaluation forms confirming that you are competent in accordance with the competence framework detailed in the QASA Handbook .

.11 -

Your application must include all completed criminal advocacy evaluation forms obtained by you in effective trials

.12 -

If your application is successful you will be awarded full accreditation .

.13 -

If your application for full accreditation is unsuccessful, you may continue to conduct criminal advocacy at your current QASA level until the expiry of your current accreditation.

Re-accreditation
rC43 -

You must apply for re-accreditation at the QASA level at which you are accredited within five years from the date on which your full accreditation was granted.

rC44 -

You shall submit, in support of an application for re-accreditation , evidence to demonstrate your competence to conduct criminal advocacy at the QASA level at which you are accredited, comprising:

.1 -

if you are accredited at QASA level 1, evidence of the assessed continuing professional development undertaken by you in the field of advocacy in the period since you were accredited at QASA level 1 or, if you have previously been re-accredited at that QASA level , since your most recent re-accreditation ;

.2 -

if you are accredited at QASA level 2, 3 or 4, the number of criminal advocacy evaluation forms prescribed by the QASA. Your application must include all completed criminal advocacy evaluation forms obtained by you in consecutive effective trials in the 24 months preceding the application.

rC45 -

If your application is successful you will be awarded full accreditation for a period of 5 years.

rC46 -

Subject to Rules C47, if your application for re-accreditation is unsuccessful, you shall be granted provisional accreditation at the QASA level below and shall be required to apply to convert this to full accreditation at that lower QASA level in accordance with Rules C41.3 to C41.5.

rC47 -

If your application for re-accreditation at QASA level 2 is unsuccessful, you shall be granted accreditation at QASA level 1.

Lapse of accreditation
rC48 -

Subject to Rule C50, your provisional accreditation will lapse if you do not apply for full accreditation before it expires.

rC49 -

Subject to Rule C50, your full accreditation will lapse if you do not apply for re-accreditation within 5 years of the date on which you were awarded full accreditation .

rC50 -

If the BSB has received an application within the period of accreditation , the accreditation will not lapse whilst a decision is pending.

rC51 -

If your accreditation lapses, you may not undertake criminal advocacy in accordance with Rule 2.

Applications for variation
rC52 -

Where your individual circumstances result in you encountering difficulties in obtaining completed criminal advocacy evaluation forms within the specified period, then you may apply to the Bar Standards Board for an extension of time to comply with the requirements; or 

rC53 -

Where your individual circumstances result in you encountering difficulties in obtaining completed criminal advocacy evaluation forms, then you may apply to the Bar Standards Board for your competence to conduct criminal advocacy to be assessed by an independent assessor , and you may submit the results of the assessment in support of your application for registration , re-accreditation or progression in the place of one criminal advocacy evaluation form.

Managing underperformance
rC54 -

The Bar Standards Board may receive criminal advocacy evaluation forms raising concerns regarding your competence to conduct criminal advocacy at any time.

rC55 -

Where concerns regarding your competence to conduct criminal advocacy are brought to the attention of the Bar Standards Board , either during the course of its consideration of an application brought by you under these Rules, or as a result of concerns raised under Rule C54, it may decide to do one or more of the following:

.1 -

appoint an independent assessor to conduct an assessment of your criminal advocacy ;

.2 -

recommend that you undertake, at your own cost, such training for such period as it may specify;

.3 -

revoke your accreditation at your current QASA level ; and/or

.4 -

refer you for consideration of your health or conduct under the Fitness to Practise Rules or the Complaints Rules, as it considers appropriate,

and shall notify you accordingly, giving reasons for its decision.

rC56 -

Where your accreditation has been revoked, you shall be granted provisional accreditation at the QASA level below and shall be required to apply to convert this to full accreditation in accordance with Rules C41.3 to C41.5. 

rC57 -

Where you have applied for registration or re-accreditation at QASA level 1, and your application has been refused, you will not be entitled to accept any instructions to conduct criminal advocacy , and the Bar Standards Board may recommend that you undertake training in accordance with Rule C55.2 before you re-apply for registration or re-accreditation as appropriate.

rC58 -

Where you have undertaken training under Rule C55.2, the Bar Standards Board shall, at the end of the specified period, assess whether you have satisfactorily completed the training before reaching a decision in relation to any further steps that it may consider appropriate to take in accordance with Rule C55.

Appeals
rC59 -

You may appeal to the Bar Standards Board against any decision reached by it under these rules. Appeals must be made in accordance with the published Bar Standards Board QASA Appeals Policy.

Commencement and transitional arrangements
rC60 -

Subject to Rule C63, the QASA Rules commence on 30 September 2013.

Registration of barristers currently undertaking criminal advocacy
rC61 -

Barristers currently undertaking criminal advocacy are required to apply for registration under the QASA Scheme in accordance with the phased implementation programme as set out at paragraphs 2.11 to 2.13 of the QASA Handbook .

rC62 -

The dates for registration will depend upon the primary circuit in which you practise. This will be the circuit in which you undertake criminal advocacy more frequently than in any other circuit.

.1 -

If you primarily practise in the Midland or Western Circuit, you must register for QASA from 30 September 2013 and before the first occasion on which you undertake criminal advocacy after 7 March 2014.

.2 -

If you primarily practise in the South Eastern Circuit, you must register for QASA from 10 March 2014 and before the first occasion on which you undertake criminal advocacy after 13 June 2014.

.3 -

If you primarily practise in the Northern, North Eastern or Wales and Chester Circuit, you must register for QASA from 30 June 2014 and before the first occasion on which you undertake criminal advocacy after 3 October 2014.

rC63 -

Subject to Rules C63.1, C63.2 and Rule C31 commences for all advocates from 4 October 2014.

.1 -

Rule C31 will commence for those advocates who primarily practise in the Midland or Western Circuit from 10 March 2014. Any advocate who undertakes criminal advocacy in these circuits without accreditation must be able to prove to the Bar Standards Board that they practise primarily in another circuit. 

.2 -

Rule C31 will commence for those advocates who primarily practise in the South Eastern Circuit from 14 June 2014. Any advocate who undertakes criminal advocacy in this circuit without accreditation must be able to prove to the Bar Standards Board that they practise primarily in the Northern, North Eastern or Wales and Chester Circuit.

C4 - You and Your Regulator

Outcomes

oC21 -

BSB regulated persons are effectively regulated.

oC22 -

The public have confidence in the proper regulation of persons regulated by the Bar Standards Board .

oC23 -

The Bar Standards Board has the information that it needs in order to be able to assess risks and regulate effectively and in accordance with the regulatory objectives .

Rules

Provision of information to the Bar Standards Board
rC64 -

You must:

.1 -

promptly provide all such information to the Bar Standards Board as it may, for the purpose of its regulatory functions, from time to time require of you, and notify it of any material changes to that information; and

.2 -

comply in due time with any decision or sentence imposed by the Bar Standards Board , a Disciplinary Tribunal , the Visitors , the High Court, an interim panel , a review panel , an appeal panel or a Fitness to Practise Panel.

.3 -

if you are a BSB authorised body or an owner or manager of a BSB authorised body and the conditions outlined in rS113.5 apply, give the Bar Standards Board whatever co-operation is necessary, including:

.a -

complying with a notice sent by the Bar Standards Board or its agent to produce or deliver all documents in your possession or under your control in connection with your activities as a BSB authorised body (such notice may require such documents to be produced at a time and place fixed by the Bar Standards Board or its agent; and

.b -

complying with a notice from the Bar Standards Board or its agent to redirect communications, including post, email, fax and telephones.

Guidance to Rule C64
gC92 -

Your obligations under Rule C64 include, for example, responding promptly to any request from the Bar Standards Board for comments or information relating to any matter whether or not the matter relates to you, or to another BSB regulated person

gC93 -

Information which you are requested to disclose under Rule C64 mayinclude client information that is subject to legal privilege. You are not entitled to disclose suchinformation without the consent of the client . You may enquire whetheryour client is willing to waive privilege but should be alert to thepossibility that you may have a conflict of interest in giving him any adviceas to whether he should. The BSB will look at the question of privilege on acase by case basis. It will bear in mind in the exercise of its regulatoryfunctions that a client might have been prepared to waive privilege ifasked. Observations in R (Morgan Grenfell & Co Ltd) v Special Commissioner[2003] 1 A.C. 563 at [32], referred to in R (Lumsdon) v Legal Services Board[2013] EWHC 28 (Admin) at [73] were made in the context of a differentstatutory disclosure regime and should not be used as necessarily applicable todisclosure under Rule C64. However, in the meantime, following this guidanceshould avoid practical difficulties in most cases. For the avoidance ofdoubt, none of this casts any doubt on a barrister’s entitlement towithhold from the BSB any material that is subject to the barrister’sown legal privilege (such as legal advice given to the barrister abouttheir own position).

Duty to Report Certain Matters to the Bar Standards Board
rC65 -

You must report promptly to the Bar Standards Board if:

.1 -

you are charged with an indictable offence ; in the jurisdiction of England and Wales or with a criminal offence of comparable seriousness in any other jurisdiction;

.2 -

you are convicted of, or accept a caution, for any criminal offence , in any jurisdiction, other than a minor criminal offence ;

.3 -

you (or an entity of which you are a manager) to your knowledge are the subject of any disciplinary or other regulatory or enforcement action by another Approved Regulator or  other regulator, including being the subject of disciplinary proceedings;

.4 -

you are a manager of an non-BSB authorised body which is the subject of an intervention by the approved regulator of that body;

.5 -

you are a registered European lawyer and:

.a -

to your knowledge any investigation into your conduct is commenced by your home   regulator ; or

.b -

any finding of professional misconduct is made by your home regulator ; or

.c -

your authorisation in your home state to pursue professional activities under your home professional title is withdrawn or suspended ; or

.d -

you are charged with a disciplinary offence.

.6 -

any of the following occur:

.a -

bankruptcy proceedings are initiated in respect of or against you;

.b -

director’s disqualification proceedings are initiated against you;

.c -

a bankruptcy order or director’s disqualification order is made against you;

.d -

you have made a composition or arrangement with, or granted a trust deed for, your creditors;

.e -

winding up proceedings are initiated in respect of or against you

.f -

you have had an administrator, administrative receiver, receiver or liquidator appointed in respect of you;

.g -

administration proceedings are initiated in respect of or against you;

.7 -

you have committed serious misconduct;

.8 -

you become authorised to practise by another approved regulator .

Guidance to Rule C65
gc94 -

In circumstances where you have committed serious misconduct you should take all reasonable steps to mitigate the effects of such serious misconduct.

gC94.1 -

For the avoidance of doubt rC65.2 does not oblige you to disclose cautions or criminal convictions thatare “spent” under the Rehabilitation of Offenders Act 1974 unless the Rehabilitationof Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) applies.  However, unless the caution or conviction isimmediately spent, you must notify the BSB before it becomes spent.

Reporting Serious Misconduct by others
rC66 -

Subject to your duty to keep the affairs of each client confidential and subject also to Rules C67 and C68, you must report to the Bar Standards Board if you have reasonable grounds to believe that there has been serious misconduct by a barrister or a registered European lawyer , a BSB authorised body , a BSB regulated manager or an authorised (non-BSB) individual who is working as a manager or an employee of a BSB authorised body .

rC67 -

You must never make, or threaten to make, a report under Rule C66 without a genuine and reasonably held belief that Rule C66 applies.

rC68 -

You are not under a duty to report serious misconduct by others if:

.1 -

you become aware of the facts giving rise to the belief that there has serious misconduct from matters that are in the public domain and the circumstances are such that you reasonably consider it likely that the facts will have come to the attention of the Bar Standards Board ; or

.2 -

you are aware that the relevant person that committed the serious misconduct has already reported the serious misconduct to the Bar Standards Board ; or

.3 -

the events which led to you becoming aware of that other person’s serious misconduct are subject to their legal professional privilege; or

.4 -

you become aware of such serious misconduct as a result of your work on a Bar Council advice line.

rC69 -

You must not victimise anyone for making in good faith a report under Rule C66.

Guidance on Rules C65.7 to C68
gC95 -

It is in the public interest that the Bar Standards Board , as an Approved Regulator , is made aware of, and is able to investigate, potential instances of serious misconduct.  The purpose of Rules C65.7 to C69, therefore, is to assist the Bar Standards Board in undertaking this regulatory function. 

gC96 -

Serious misconduct includes, without being limited to:

.1 -

dishonesty (CD3);

.2 -

assault or harassment(CD3 and/or CD5 and/or CD8);

.3 -

seeking to gain access without consent to instructions or other confidential information relating to the opposing party’s case (CD3 and/or CD5); or

.4 -

seeking to gain access without consent to confidential information relating to another member of chambers , member of staff or pupil (CD3 and/or CD5);

.5 -

encouraging a witness to give evidence which is untruthful or misleading (CD1 and/or CD3);

.6 -

knowingly or recklessly misleading, or attempting to mislead, the court or an opponent (CD1 and/or CD3); or

.7 -

being drunk or under the influence of drugs in court (CD2 and/or CD7); or

.8 -

failure by a barrister to report promptly to the Bar Standards Board pursuant to rC66 above;

.9 -

a breach by a barrister of rC70 below;

.10 -

conduct that poses a serious risk to the public.

gC97 -

If you believe (or suspect) that there has been serious misconduct, then the first step is to carefully consider all of the circumstances. The circumstances include:

.1 -

whether that person’s instructions or other confidential matters might have a bearing on the assessment of their conduct;

.2 -

whether that person has been offered an opportunity to explain their conduct, and if not, why not;

.3 -

any explanation which has been or could be offered for that person’s conduct;

.4 -

whether the matter has been raised, or will be raised, in the litigation in which it occurred, and if not, why not. 

gC98 -

Having considered all of the circumstances, the duty to report arises if you have reasonable grounds to believe there has been serious misconduct.  This will be so where, having given due consideration to the circumstances, including the matters identified at Guidance C97, you have material before you which as it stands establishes a reasonably credible case of serious misconduct.  Your duty under Rule C66 is then to report the potential instance of serious misconduct so that the Bar Standards Board can investigate whether or not there has in fact been misconduct.

gC99 -

Circumstances which may give rise to the exception from the general requirement to report serious misconductset out in Rule C68.1 include for example where misconduct has been widely reported in the national media.  In these circumstances it would not be in the public interest for every BSB regulated person to have an obligation to report such serious misconduct.

gC100 -

In Rule C68.4 “work on a Bar Council advice linemeans:

.1 -

dealing with queries from BSB regulated persons who contact an advice line operated by the Bar Council for the purposes of providing advice to those persons ; and

.2 -

either providing advice to BSB regulated persons in the course of working for an advice line or to any individual working for an advice line where (i) you are identified on the list of BSB regulated persons maintained by the Bar Council as being permitted to provide such advice (the “approved list”); and (ii) the advice which you are being asked to provide to the individual working for an advice line arises from a query which originated from their work for that service; and

.3 -

providing advice to BSB regulated persons where any individual working for an advice line arranges for you to give such advice and you are on the approved list.

.4 -

for the purposes of Rule C68, the relevant advice lines are: 

-       the Ethical Queries Helpline;

-       the Equality and Diversity Helpline;

-       the Remuneration Helpline; and

-       the Pupillage Helpline.

gC101 -

Rule C68.4 has been carved out of the general requirement to report serious misconduct of others because it is not in the public interest that the duty to report misconduct should constrain BSB authorised persons appointed by or on behalf of the Bar Council to offer ethical advice to others from doing so or inhibit BSB regulated persons needing advice from seeking it. Consequently, BSB authorised persons appointed by or on behalf of the Bar Council to offer ethical advice to BSB regulated persons through a specified advice service will not be under a duty to report information received by them in confidence from persons seeking such advice, subject only to the requirements of the general law. However, in circumstances where Rule C68.4 applies, the relevant BSB authorised person will still be expected to encourage the relevant BSB regulated person who has committed serious misconduct to disclose such serious misconduct to the Bar Standards Board in accordance with Rule C65.7.

gC102 -

Misconduct which falls short of serious misconduct should, where applicable, be reported to your HOLP so that they can keep a record of non-compliance in accordance with Rule C96.4.

Access to Premises
rC70 -

You must permit the Bar Council , or the Bar Standards Board , or any person appointed by them, reasonable access, on request, to inspect:

.1 -

any premises from which you provide, or are believed to provide, legal services ; and

.2 -

any documents or records relating to those premises and your practice , or BSB authorised body ,

and the Bar Council , Bar Standards Board , or any person appointed by them, shall be entitled to take copies of  such documents or records as may be required by them for the purposes of their functions and, if you are a BSB authorised body , may enter your premises and operate from thosepremises for the purpose of taking such action as is necessary to protect theinterests of clients.

Co-operation with the Legal Ombudsman
rC71 -

You must give the Legal Ombudsman all reasonable assistance requested of you, in connection with the investigation, consideration, and determination, of complaints made under the Ombudsman scheme.

Ceasing to practise
rC72 -

Once you are aware that you (if you are a self-employed barrister or a BSB authorised body ) or the BSB authorised body within which you work (if you are an authorised individual or manager of such BSB authorised body ) will cease to practise, you shall effect the orderly wind-down of activities, including:

.1 -

informing the Bar Standards Board and providing them with a contact address;

.2 -

notifying those clients for whom you have current matters and liaising with them in respect of the arrangements that they would like to be put in place in respect of those matters;

.3 -

providing such information to the Bar Standards Board in respect of your practice and your proposed arrangements in respect of the winding down of your activities as the Bar Standards Board may require.

C5 - You and Your Practice

Outcomes

oC24 -

Your practice is run competently in a way that achieves compliance with the Core Duties and your other obligations under this Handbook . Your employees , pupils and trainees understand, and do, what is required of them in order that you meet your obligations under this Handbook .

oC25 -

Clients are clear about the extent to which your services are regulated and by whom, and who is responsible for providing those services.

C5.1 - GENERAL

Client money
rC73 -

Except where you are acting in your capacity as a manager of an authorised (non-BSB) body , you must not receive, control or handle client money apart from what the client pays you for your services.

rC74 -

If you make use of a third party payment service for making payments  to or from or on behalf of your client you must:

.1 -

Ensure that the service you use will not result in your receiving, controlling or handling client money; and

.2 -

Only use the service for payments to or from or on behalf of your client that are made in respect of legal services, such as fees, disbursements or settlement monies; and

.3 -

Take reasonable steps to check that making use of the service is consistent with your duty to act competently and in your client’s best interests.

rC75 -

The Bar Standards Board may give notice under this rule that (effective from the date of that notice) you may only use third party payment services approved by the Bar Standards Board or which satisfy criteria set by the Bar Standards Board

Guidance on Rules C73 and C74
gC103 -

The prohibition in Rule C73 applies to you and to anyone acting on your behalf, including any "ProcureCo" being a company established as a vehicle to enable the provision of legal services but does not in itself supply or provide those legal services . Rule C73 prohibits you from holding client money or other client  assets yourself, or through any agent, third party or nominee. 

 

gC104 -

Receiving, controlling or handling client money includes entering into any arrangement which gives you de facto control over the use and/or destination of funds provided by or for the benefit of your client or intended by another party to be transmitted to your client , whether or not those funds are beneficially owned by your client and whether or not held in an account of yours.

gC105 -

The circumstances in which you will have de facto control within the meaning of Rule C73 include when you can cause money to be transferred from a balance standing to the credit of your client without that client’s consent to such a withdrawal.  For large withdrawals, explicit consent should usually be required. However, the client’s consent may be deemed to be given if:  

.1 -

the client has given informed consent to an arrangement which enables withdrawals to be made after the client has received an invoice; and

.2 -

the client has not objected to the withdrawal within a pre-agreed reasonable period (which should not normally be less than one week from receipt of the invoice).

gC106 -

A fixed fee paid in advance is not client money for the purposes of Rule C73.

gC107 -

If you have decided in principle to take a particular case you may request an 'upfront' fixed fee from your prospective client before finally agreeing to work on their behalf. This should only be done having regard to the following principles:

• You should take care to estimate accurately the likely time commitment and only take payment when you are satisfied that:

- it is a reasonable payment for the work being done; and

- in the case of public access work, that it is suitable for you to undertake.

• If the amount of work required is unclear, you should consider staged payments rather than a fixed fee in advance.

• You should never accept an upfront fee in advance of considering whether it is appropriate for you to take the case and considering whether you will be able to undertake the work within a reasonable timescale.

• If the client can reasonably be expected to understand such an arrangement, you may agree that when the work has been done, you will pay the clien t any difference between that fixed fee and (if lower) the fee which has actually been earned based on the time spent, provided that it is clear that you will not hold the difference between the fixed fee and the fee which has been earned on trust for the client .  That difference will not be client money if you can demonstrate that this was expressly agreed in writing, on clear terms understood by the client , and before payment of the fixed fee. You should also consider carefully whether such an arrangement is in the client’s interest, taking into account the nature of the instructions, the client and whether the client fully understands the implications.  Any abuse of an agreement to pay a fixed fee subject to reimbursement, the effect of which is that you receive more money than is reasonable for the case at the outset, will be considered to be holding client money and a breach of rC73.  For this reason, you should take extreme care if contracting with a client in this way. 

• In any case, rC22 requires you to confirm in writing the acceptance of any instructions and the terms or basis on which you are acting, including the basis of charging.

gC108 -

Acting in the following ways may demonstrate compliance with Rules C73,  C74 and C75:

gC109 -

Checking that any third party payment service you may use is not structured in such a way that the service provider is holding, as your agent, money to which the client is beneficially entitled.  If this is so you will be in breach of Rule C73.

gC110 -

Considering whether your client will be safe in using the third party payment service as a means of transmitting or receiving funds.  The steps you should take in order to satisfy yourself will depend on what would be expected in all the circumstances of a reasonably competent legal adviser acting in their client’s best interests.  However, you are unlikely to demonstrate that you have acted competently and in your client’s best interests if you have not:

.1 -

ensured that the payment service is authorised or regulated as a payment service by the Financial Conduct Authority (FCA) and taken reasonable steps to satisfy yourself that it is in good standing with the FCA;

.2 -

if the payment service is classified as a small payment institution, ensured that it has arrangements to safeguard clients’ funds  or adequate insurance arrangements;

.2 -

ensured that the payment service segregates client money from its own funds;

.4 -

satisfied yourself that the terms of the service are such as to ensure that any money paid in by or on behalf of the client can only be paid out with the client’s consent;

.5 -

informed your client that moneys held by the payment service provider are not covered by the Financial Services Compensation Scheme.

gC111 -

Unless you are reasonably satisfied that it is safe for your client to use the third party payment service (see rC74.3, gC109 and gC110 above), advising your client against using the third party payment service and not making use of it yourself. 

gC112 -

The Bar Standards Board has not yet given notice under rule C75.

Insurance
rC76 -

You must:

.1 -

ensure that you have adequate insurance (taking into account the nature of your practice) which covers all the legal services you supply to the public; and

.2 -

if you are a BSB authorised person or BSB authorised body or a manager of a BSB authorised body , then in the event that the Bar Standards Board, by any notice it may from time to time issue under this Rule C76, stipulates a minimum level of insurance and/or minimum terms for the insurance which must be taken out by BSB authorised persons , you must ensure that you have or put in place within the time specified in such notice, insurance meeting such requirements as apply to you.

rC77 -

Where you are acting as a self-employed barrister , you must be a member of BMIF , unless:

.1 -

you are a pupil who is covered  by his pupil supervisor’s insurance; or

.2 -

you were called to the Bar under Rule Q98, in which case you must either be insured with BMIF or be covered by insurance against claims for professional negligence arising out of the supply of your services in England and Wales in such amount and on such terms as are currently required by the Bar Standards Board , and have delivered to the Bar Standards Board a copy of the current insurance policy, or the current certificate of insurance, issued by the insurer.

rC78 -

If you are a member of BMIF , you must:

.1 -

pay promptly the insurance premium required by BMIF ; and

.2 -

supply promptly such information as BMIF may from time to time require pursuant to its rules.

Guidance on Rules C75 to C77
gC113 -

Where you are working in a BSB authorised body , you will satisfy the requirements of Rule C76.1 so long as the BSB authorised body has taken out insurance, which covers your activities. A BSB authorised body will have to confirm each year that it has reviewed the adequacy of its insurance cover on the basis of a risk analysis and that they have complied with this rule.

 

gC114 -

Any notice issued under Rule rC75 will be posted on the Bar Standards Board’s website and may also be publicised by such other means as the Bar Standards Board may judge appropriate.

 

The Bar Standards Board’s requirements in respect of professional indemnity insurance, including the minimum terms, are concerned with ensuring consumer protection, specifically that there is adequate cover for liabilities which BSB regulated persons may incur to their clients or other parties to whom they may owe duties when performing their legal services . This includes claims for contribution which third parties, such as instructing solicitors, may make on the basis that the BSB regulated person has such a liability to a mutual client . However, Rule C76.1 of the Handbook does not require BSB regulated persons to carry insurance for other types of liability, which do not relate to their liabilities towards consumers, such as a contractual liability to instructing solicitors in respect of losses incurred by the solicitor that are not based on any liability the solicitor has in turn incurred to the client . Nor are the minimum terms concerned with the latter type of liability and whether and on what terms to seek to insure against such exposure is a commercial judgment for BSB regulated persons to make. You should however ensure that you are aware of and comply with any general legal requirements for you to carry other types of insurance than professional indemnity cover.

gC115 -

Where you are working in an authorised (non-BSB) body , the rules of the  approved regulator of that body will determine what insurance the authorised (non-BSB) body must have.

gC116 -

Where you are working as an employed barrister (non-authorised body), the rule does not require you to have your own insurance if you provide legal services only to your employer .  If you supply legal services to other people (to the extent permitted by the Scope of Practice and Authorisation and Licensing Rules set out at Section S.B you should consider whether you need insurance yourself having regard to the arrangements made by your employer for insuring against claims made in respect of your services.  If your employer already has adequate insurance for this purpose, you need not take out any insurance of your own.  You should ensure that your employer’s policy covers you, for example, for any pro-bono work you may do.

gC117 -

Where you are a registered European lawyer , the rule does not require you to have your own insurance if:

.1 -

you provide to the Bar Standards Board evidence to show that you are covered by insurance taken out or a guarantee provided in accordance with the rules of your home State ; and

.2 -

the Bar Standards Board is satisfied that such insurance or guarantee is fully equivalent in terms of conditions and extent of cover to the cover required pursuant to Rule C76.  However, where the Bar Standards Board is satisfied that the equivalence is only partial, the Bar Standards Board may require you to arrange additional insurance or an additional guarantee to cover the elements which are not already covered by the insurance or guarantee contracted by you in accordance with the rules of your home state

Associations with others
rC79 -

You may not do anything, practising in an association , which you are otherwise prohibited from doing.

rC80 -

Where you are in an association on more than a one-off basis, you must notify the Bar Standards Board that you are in an association , and provide such details of that association as are required by the Bar Standards Board .

rC81 -

If you have a material commercial interest in an organisation to which you plan to refer a client , you must:

.1 -

tell the client in writing about your interest in that organisation before you refer the client ; and

.2 -

keep a record of your referrals to any such organisation for review by the Bar Standards Board on request.

rC82 -

If you have a material commercial interest in an organisation which is proposing to refer a matter to you, you must:

.1 -

tell the client in writing about your interest in that organisation before you accept such instructions ;

.2 -

make a clear agreement with that organisation or other public statement about how relevant issues, such as conflicts of interest, will be dealt with; and

.3 -

keep a record of referrals received from any such organisation for review by the Bar Standards Board on reasonable request.

rC83 -

If you refer a client to a third party which is not a BSB authorised person or an authorised (non-BSB) person , you must take reasonable steps to ensure that the client is not wrongly led to believe that the third party is subject to regulation by the Bar Standards Board or by another approved regulator .

rC84 -

You must not have a material commercial interest in any organisation which gives the impression of being, or may be reasonably perceived as being, subject to the regulation of the Bar Standards Board or of another approved regulator , in circumstances where it is not so regulated.

rC85 -

A material commercial interest for the purposes of Rules C78 to C84 is an interest which an objective observer with knowledge of the salient facts would reasonably consider might potentially influence your judgment.

Guidance on Rules C78 to C84 and CD5
gC118 -

You may not use an association with the purpose of, or in order to evade rules which would otherwise apply to you. You may not do anything, practising in an association , which you are individually prohibited from doing.

gC119 -

You will bring yourself and your profession into disrepute (CD5) if you are personally involved in arrangements which breach the restrictions imposed by the Legal Services Act 2007 on those who can provide reserved legal activities.  For example, you must not remain a member of any “ProcureCo” arrangement where you know or are reckless as to whether the ProcureCo is itself carrying on reserved legal activities without a licence or where you have failed to take reasonable steps to ensure this is not so before joining or continuing your involvement with the Procureco.

gC120 -

The purpose of Rules C78 to C84 is to ensure that clients and members of the public are not confused by any such association. In particular, the public should be clear who is responsible for doing work, and about the extent to which that person is regulated in doing it: see Rules C77 and C80.

gC121 -

This Handbook applies in full whether or not you are practising in an association. You are particularly reminded of the need to ensure that, notwithstanding any such association, you continue to comply with Rules C8, C9, C10, C12, C15, C19, C20, C28, C73, C75, C79, C82 and C86 (and, where relevant C80, C81, C83, C74 and C110).

gC122 -

References to "organisation" in Rules C81 and C82 include BSB authorised bodies and authorised (non-BSB) bodies, as well as non-authorised bodies. So, if you have an interest, as owner, or manager, in any such body, your relationship with any such organisation is caught by these rules.

gC123 -

These rules do not permit you to accept instructions from a third party in any case where that would give rise to a potential conflict of interest contrary to CD2 or any relevant part of Rule C79.

gC124 -

You should only refer a client to an organisation in which you have a material commercial interest if it is in the client’s best interest to be referred to that organisation.  This is one aspect of what is required of you by CD2.  Your obligations of honesty and integrity, in CD3, require you to be open with clients about any interest you have in, or arrangement you have with, any organisation to which you properly refer the client , or from which the client is referred to you.  It is inherently unlikely that a general referral arrangement obliging you (whether or not you have an interest in such organisation) to refer to that organisation, without the option to refer elsewhere if the client’s circumstances make that more appropriate, could be justified as being in the best interests of each individual client (CD2) and it may well also be contrary to your obligations of honesty and integrity (CD3) and compromise your independence (CD4).

gC125 -

The Bar Standards Board may require you to provide copies of any protocols that you may have in order to ensure compliance with these rules.

gC126 -

Your obligations under CD5 require you not to act in an association with a person where, merely by being associated with such person, you may reasonably be considered as bringing the profession into disrepute or otherwise diminishing the trust that the public places in you and your profession.

gC127 -

Members of chambers are not in partnership but are independent of one another and are not responsible for the conduct of other members.  However, each individual member of chambers is responsible for his own conduct and the constitution of chambers enables, or should enable, each individual member of chambers to take steps to terminate another person’s membership in specified circumstances.  Rule C87 does not require you to sever connection with a member of chambers solely because to your knowledge he or she is found to breach this Handbook , provided that he or she is not disbarred and complies with such sanctions as may be imposed for such breach; however, your chambers constitution should be drafted so as to allow you to exclude from chambers a member whose conduct is reasonably considered such as to diminish the trust the public places in you and your profession and you should take such steps as are reasonably available to you under your constitution to exclude any such member.

Outsourcing
rC86 -

Where you outsource to a third party any support services that are critical to the delivery of any legal services in respect of which you are instructed:

.1 -

any outsourcing does not alter your obligations to your client ;

.2 -

you remain responsible for compliance with your obligations under this Handbook in respect of the legal services ;

.3 -

you must ensure that such outsourcing is subject to contractual arrangements which ensure that such third party:

.a -

is subject to confidentiality obligations similar to the confidentiality obligations placed on you in accordance with this Handbook ;

.b -

complies with any other obligations set out in this Code of Conduct which may be relevant to or affected by such outsourcing;

.c -

processes any personal data in accordance with your instructions and, for the avoidance of doubt, as though it were a data controller under the Data Protection Act; and

.d -

is required to allow the Bar Standards Board or its agent to obtain information from, inspect the records (including electronic records) of, or enter the premises of such third party in relation to the outsourced activities or functions.

Guidance on Rule C87.2
gC128 -

Rule C86 applies to the outsourcing of clerking services.

gC129 -

Rule C86 does not apply where the client enters into a separate agreement with the third party for the services in question.

gC130 -

Rule C86 does not apply where you are instructing a pupil or a devil to undertake work on your behalf.  Instead C15 will apply in those circumstances.

gC131 -

Notwithstanding Rule C86.3.c you are still likely to remain the data controller of the personal data in question.  Therefore, Rule C86.3.c does not relieve you of your obligations to comply with the Data Protection Act in respect of such data.

C5.2 - ADMINISTRATION AND CONDUCT OF SELF-EMPLOYED PRACTICE

rC87 -

You must take reasonable steps to ensure that:

.1 -

your practice is efficiently and properly administered having regard to the nature of your practice; and

.2 -

proper records of your practice are kept.

Guidance on Rule C87.2
gC132 -

The Supervision Team of the Bar Standards Board reviews the key controls that are in place in chambers and BSB authorised bodies to manage the risks in relation to key processes. These key processes are shown in guidance that is published on the Supervision section of the Bar Standards Board’s website: https://www.barstandardsboard.org.uk/regulatory-requirements/for-barristers/supervision/. You should retain relevant policies, procedures, monitoring reports and other records of your practice so that they are available to view if a Supervision visit is arranged. When deciding how long records need to be kept, you will need to take into consideration various requirements, such as those of this Handbook (see, for example, Rules C108, C129 and C141), the Data Protection Act and HM Revenue and Customs. You may want to consider drawing up a Records Keeping policy to ensure that you have identified the specific compliance and other needs of your practice .

rC88 -

You must:

.1 -

ensure that adequate records supporting the fees charged or claimed in a case are kept at least until the later of the following:

.a -

your fees have been paid; and

.b -

any determination or assessment of costs in the case has been completed and the time for lodging an appeal against that assessment or determination has expired without any such appeal being lodged, or any such appeal has been finally determined;

.2 -

provide your client with such records or details of the work you have done as may reasonably be required for the purposes of verifying your charges.

C5.3 - ADMINISTRATION OF CHAMBERS

rC89 -

Taking into account the provisions of Rule C90, you must take reasonable steps to ensure that:

.1 -

your chambers is administered competently and efficiently;

.2 -

your chambers has appointed an individual or individuals to liaise with the Bar Standards Board in respect of any regulatory requirements and has notified the Bar Standards Board ;

.3 -

your chambers does not employ any person who has been disqualified from being employed by an authorised person or a licensed body by another approved regulator pursuant to its or their powers as such and such disqualification is continuing in force;

.4 -

proper arrangements are made in your chambers for dealing with pupils and pupillage;

.5 -

proper arrangements are made in chambers for the management of conflicts of interest and for ensuring the confidentiality of clients’ affairs;

.6 -

all non-authorised persons working in your chambers (irrespective of the identity of their employer ):

.a -

are competent to carry out their duties;

.b -

carry out their duties in a correct and efficient manner;

.c -

are made clearly aware of such provisions of this Handbook as may affect or be relevant to the performance of their duties;

.d -

do nothing which causes or substantially contributes to a breach of this Handbook by any BSB authorised individual or authorised (non-BSB) individual within Chambers ,

and all complaints against them are dealt with in accordance with the complaints rules;

.7 -

all registered European lawyers and all foreign lawyers in your chambers comply with this Handbook insofar as applicable to them;

.8 -

appropriate risk management procedures are in place and are being complied with; and

.9 -

there are systems in place to check that:

.a -

all persons practising from your chambers whether they are members of the chambers or not have insurance in place in accordance with Rules C75 to C77 above (other than any pupil who is covered under his pupil supervisor’s insurance); and

.b -

every BSB authorised individual practising from your chambers has a current practising certificate and every other authorised (non-BSB) individual providing reserved legal activities is currently authorised by their Approved Regulator .

rC90 -

For the purposes of Rule C89 the steps which it is reasonable for you to take will depend on all the circumstances, which include, but are not limited to:

.1 -

the arrangements in place in your chambers for the management of chambers ;

.2 -

any role which you play in those arrangements; and

.3 -

the independence of individual members of chambers from one another.

Guidance on Rule C88 and C89
gC133 -

Your duty under Rule C89.4 to have proper arrangements in place for dealing with pupils includes ensuring:

.1 -

that all pupillage vacancies are advertised in the manner prescribed by the Pupillage Funding and Advertising Rules (C113 to C118);

.2 -

that arrangements are made for the funding of pupils by chambers which comply with the Pupillage Funding and Advertising Rules (C113 to C118);

gC134 -

Your duty under Rule C89.5 to have proper arrangements in place for ensuring the confidentiality of each client’s affairs includes:

.1 -

putting in place and enforcing adequate procedures for the purpose of protecting confidential information;

.2 -

complying with data protection obligations imposed by law;

.3 -

taking reasonable steps to ensure that anyone who has access to such information or data in the course of their work for you complies with these obligations; and

.4 -

taking into account any further guidance on confidentiality which is available on the Bar Standards Board's website and which can be accessed here: https://www.barstandardsboard.org.uk/regulatory-requirements/bsb-handbook/code-guidance/

 

gC135 -

In order to ensure compliance with Rule C89.6.d, you may want to consider incorporating an obligation along these lines in all new employment contracts entered into after the date of this Handbook .

gC136 -

For further guidance on what may constitute appropriate risk management procedures in accordance with Rule C89.8 please refer to the further guidance published by the Bar Standards Board which can be accessed here: https://www.barstandardsboard.org.uk/regulatory-requirements/for-barristers/supervision/.

 

gC137 -

Rule C90.3 means that you should consider, in particular, the obligation of each individual members of chambers to act in the best interests of his or her own client (CD2) and to preserve the confidentiality of his or her own client’s affairs (CD6), in circumstances where other members of chambers are free (and, indeed, may be obliged by the cab rank rule (C29) to act for clients with conflicting interests.

C5.4 - ADMINISTRATION OF BSB AUTHORISED BODIES

Duties of the BSB authorised body, authorised (non-BSB) individuals and BSB regulated managers

rC91 -

If you are a BSB authorised body , you must ensure that (or, if you are a BSB regulated individual working within such BSB authorised body , you must use reasonable endeavours (taking into account the provisions of Rule C95) to procure that the BSB authorised body ensures that):

.1 -

the BSB authorised body has at all times a person appointed by it to act as its HOLP, who shall be a manager ;

.2 -

the BSB authorised body has at all times a person appointed by it to act as its HOFA ; and

.3 -

subject to rC92, the BSB authorised body does not appoint any individual to act as a HOLP or a HOFA , or to be a manager or employee of that BSB authorised body , in circumstances where that individual has been disqualified from being appointed to act as a HOLP or a HOFA or from being a manager or employed by an authorised person (as appropriate) by the Bar Standards Board or another Approved Regulator pursuant to its or their powers as such and such disqualification is continuing in force.

rC92 -

Rule C91.3 shall not apply where the BSB authorised body obtains the express written consent of the Bar Standards Board to the appointment of a person who has been disqualified before he is appointed.

rC93 -

If you are a manager or employee , you must not do anything to cause (or substantially to contribute to) a breach by the BSB authorised body or by any BSB authorised individual in it of their duties under this Handbook .

rC94 -

If you are a BSB authorised body , you must at all times have (or, if you are a BSB regulated individual working in such BSB authorised body , you must use reasonable endeavours (taking into account the provisions of Rule rC95. to procure that the BSB authorised body shall have) suitable arrangements to ensure that:

.1 -

the managers and other BSB regulated individuals working as employees of the BSB authorised body comply with the Bar Standards Board's regulatory arrangements as they apply to them, as required under section 176 of the LSA;

.2 -

all employees :

.a -

are competent to carry out their duties;

.b -

carry out their duties in a correct and efficient manner;

.c -

are made clearly aware of such provisions of this Handbook as may affect or be relevant to the performance of their duties; and

.d -

do nothing which causes or substantially contributes to, a breach of this Handbook by the BSB authorised body or any of the BSB regulated individuals employed by it;

.e -

co-operates with the Bar Standards Board in the exercise of its regulatory functions, in particular in relation to any notice issued under rC22, rC64 or rC70;

.3 -

the BSB authorised body is administered competently and efficiently, is properly staffed and keeps proper records of its practice;

.4 -

pupils and pupillages are dealt with properly;

.5 -

conflicts of interest are managed appropriately and that the confidentiality of clients’ affairs is maintained at all times;

.6 -

all registered European lawyers and all foreign lawyers employed by or working for you comply with this Handbook insofar as it applies to them;

.7 -

every BSB authorised individual employed by, or working for, the BSB authorised body has a current practising certificate (except where a barrister is working as an unregistered barrister, in which case there must be appropriate systems to ensure that they are complying with the provisions of this Handbook which apply to unregistered barristers) and every other authorised (non-BSB) individual providing reserved legal activities is currently authorised by their Approved Regulator ; and

.8 -

adequate records supporting the fees charged or claimed in a case are kept at least until the later of the following:

.a -

your fees have been paid; and

.b -

any determination or assessment of costs in the case has been completed and the time for lodging an appeal against that assessment or determination has expired without any such appeal being lodged, or any such appeal has been finally determined;

.9 -

your client is provided with such records or details of the work you have done as may reasonably be required for the purpose of verifying your charges;

.10 -

appropriate procedures are in place requiring all managers and employees to work with the HOLP with a view to ensuring that the HOLP is able to comply with his obligations under Rule rC96;

.11 -

appropriate risk management procedures are in place and are being complied with; and

.12 -

appropriate financial management procedures are in place and are being complied with.

rC95 -

For the purposes of Rule C91 and C94 the steps which it is reasonable for you to take will depend on all the circumstances, which include, but are not limited to:

.1 -

the arrangements in place in your BSB authorised body for the management of it; and

.2 -

any role which you play in those arrangements.

Guidance to Rules C91 to C94
gC138 -

Section 90 of the LSA places obligations on non-authorised individuals who are employees and managers of licensed bodies, as well as on non-authorised individuals who hold an ownership interest in such a licensed body (whether by means of a shareholding or voting powers in respect of the same) to do nothing which causes, or substantially contributes to a breach by the licensed body or by its employees or managers, of this Handbook . Rule C91 extends this obligation to BSB legal services bodies

gC139 -

Your duty under Rule C94.4 to have proper arrangements for dealing with pupils includes ensuring:

.1 -

that all pupillage vacancies are advertised in the manner prescribed by the Pupillage Funding and Advertising Rules (C113 to C118);

.2 -

that arrangements are made for the funding of pupils by chambers which comply with the Pupillage Funding and Advertising Rules (C113 to C118).

Duties of the HOLP/HOFA
rC96 -

If you are a HOLP , in addition to complying with the more general duties placed on the BSB authorised body and on the BSB regulated individuals employed by it, you must:

.1 -

take all reasonable steps to ensure compliance with the terms of your BSB authorised body's authorisation;

.2 -

take all reasonable steps to ensure that the BSB authorised body and its employees and managers comply with the duties imposed by section 176 of the LSA;

.3 -

take all reasonable steps to ensure that non-authorised individuals subject to the duty imposed by section 90 of the LSA comply with that duty;

.4 -

keep a record of all incidents of non-compliance with the Core Duties and this Handbook of which you become aware and to report such incidents to the Bar Standards Board as soon as reasonably practicable (where such failures are material in nature) or otherwise on request by the Bar Standards Board or during the next monitoring visit or review by the Bar Standards Board

rC97 -

If you are a HOFA , in addition to complying with the more general duties placed on the BSB authorised body and its BSB regulated individuals , you must ensure compliance with Rules C73 and C74.

New managers/HOLP/HOFA
rC98 -

A BSB authorised body must not take on a new manage r, HOLP or HOFA without first submitting an application to the Bar Standards Board for approval in accordance with the requirements of Section S.D.

D - RULES APPLYING TO PARTICULAR GROUPS OF REGULATED PERSONS

D1 - Self-employed Barristers, Chambers and BSB Authorised Bodies

Outcomes

oC26 -

Clients know that they can make a complaint if dissatisfied, and know how to do so.

oC27 -

Complaints are dealt with promptly and the client is kept informed about the process.

oC28 -

Self-employed barristers, chambers and BSB authorised bodies run their practices without discrimination .

oC29 -

Pupils are treated fairly and all vacancies for pupillages are advertised openly.

D1.1 - COMPLAINTS RULES

Provision of information to clients
rC99 -

You must notify clients in writing when you are instructed, or, if that is if not practicable, at the next appropriate opportunity:

.1 -

of their right to make a complaint , including their right to complain to the Legal Ombudsman (if they have such a right), how, and to whom, they can complain,  and of any time limits for making a complaint ;

.2 -

if you are doing referral work, that the lay client may complain directly to chambers or the BSB authorised body without going through solicitors.

rC100 -

If you are doing public access, or licensed access work using an intermediary , the intermediary must similarly be informed.

rC100 -

If you are doing public access, or licensed access work using an intermediary , the intermediary must similarly be informed.

rC101 -

If you are doing referral work, you do not need to give a professional client the information set out in Rules C99.1 and C99.2, in a separate, specific letter. It is enough to provide it in the ordinary terms of reference letter (or equivalent letter) which you send when you accept instructions in accordance with Rule C21.

rC102 -

If you do not send a letter of engagement to a lay client in which this information can be included, a specific letter must be sent to him giving him the information set out at Rules C99.1 and C99.2.

rC103 -

Chambers’ websites and literature must display information about the chambers’ complaints procedure.  A BSB's authorised body's website and literature must carry information about that BSB authorised body's Complaints Procedure.

Response to complaints
rC104 -

All complaints must be acknowledged promptly.  When you acknowledge a complaint , you must you must give the complainant:

.1 -

the name of the person who will deal with the complaint and a description of that person’s role in chambers or in the BSB authorised body (as appropriate);

.2 -

a copy of the chambers ’ complaints procedure or the BSB authorised body's Complaints Procedure (as appropriate);

.3 -

the date by which  the complainant will next hear from chambers or the BSB authorised body (as appropriate).

rC105 -

When chambers or BSB authorised body (as appropriate) has dealt with the complaint , complainants must be told in writing of their right to complain to the Legal Ombudsman (where applicable), of the time limit for doing so, and how to contact him.

Documents and Record Keeping
rC106 -

All communications and documents relating to complaints must be kept confidential. They must be disclosed only so far as is necessary for:

.1 -

the investigation and resolution of the complaint ;

.2 -

internal review in order to improve chambers ’ or the BSB authorised body’s (as appropriate) handling of complaints;

.3 -

complying with requests from the Bar Standards Board in the exercise of its monitoring and/or auditing functions. 

rC107 -

The disclosure to the Bar Standards Board of internal documents relating to the handling of the complaint (such as the minutes of any meeting held to discuss a particular complaint ) for the further resolution or investigation of the complaint is not required.

rC108 -

A record must be kept of each complaint , of all steps taken in response to it, and of the outcome of the complaint . Copies of all correspondence, including electronic mail, and all other documents generated in response to the complaint must also be kept. The records and copies should be kept for 6 years from resolution of the complaint

rC109 -

The person responsible for the administration of the procedure must report at least annually to either:

.1 -

the HOLP ; or

.2 -

the appropriate member/committee of chambers ,

on the number of complaints received, on the subject areas of the complaints and on the outcomes. The complaints should be reviewed for trends and possible training issues.

D1.2 - EQUALITY AND DIVERSITY

rC110 -

You must take reasonable steps to ensure that in relation to your chambers or BSB authorised body:

.1 -

there is in force a written statement of policy on equality and diversity; and

.2 -

there is in force a written plan implementing that policy;

.3 -

the following requirements are complied with:

Equality and Diversity Officer
.a -

chambers or BSB authorised body has at least one Equality and Diversity Officer ;

Training
.b -

except in unforeseen and exceptional circumstances, the person with lead responsibility for any selection panel and at least one member of any selection panel (who may be the same person) has received recent and appropriate training in fair recruitment and selection processes;

.c -

from July 2014, save in exceptional circumstances, every member of all selection panels must be trained in fair recruitment and selection processes;

Fair and Objective Criteria
.d -

recruitment and selection processes use objective and fair criteria;

Equality monitoring
.e -

your chambers or BSB authorised body:

.i -

conducts a regular review of its policy on equality and diversity and of its implementation in order to ensure that itcomplies with the requirements of this Rule C110; and

.ii -

takes any appropriate remedial action identified in the light of that review;

.f -

subject to Rule C110.3.h chambers or BSB authorised body regularly reviews:

.i -

the number and percentages of its workforce from different groups; and

.ii -

applications to become a member of its workforce ; and

.iii -

in the case of chambers , the allocation of unassigned work,

.g -

the reviews referred to in Rule C110.3.f above include:

.i -

collecting and analysing data broken down by race, disability and gender;

.ii -

investigating the reasons for any disparities in that data; and

.iii -

taking appropriate remedial action;

.h -

the requirement to collect the information referred to in Rule C110.3.g does not apply to the extent that the people referred to in Rule C110.3.f.i and Rule C110.3.f.ii refuse to disclose it.

Fair access to work
.i -

if you are a self-employed barrister , the affairs of your chambers are conducted in a manner which is fair and equitable for all members of chambers , pupils and/or employees (as appropriate).  This includes, but is not limited to, the fair distribution of work opportunities among pupils and members of chambers ;

Harassment
.j -

chambers or BSB authorised body has a written anti- harassment policy which, as a minimum:

.i -

states that harassment will not be tolerated or condoned and that managers , employees , members of chambers , pupils and others temporarily in your chambers or BSB authorised body such as mini-pupils have a right to complain if it occurs;

.ii -

sets out how the policy will be communicated;

.iii -

sets out the procedure for dealing with complaints of harassment ;

Parental leave
.k -

chambers has a parental leave policy which, in the case of a chambers , must cover as a minimum:

.i -

the right of a member of chambers to return to chambers after a specified period (which must be at least one year) of parental or adoption leave;

ii -

the extent to which a member of chambers is or is not required to contribute to chambers ’ rent and expenses during parental leave ;

.iii -

the method of calculation of any waiver, reduction or reimbursement of chambers ’ rent and expenses during parental leave ;

.iv -

where any element of rent is paid on a flat rate basis, the chambers policy must as a minimum provide that chambers will offer members taking a period of parental leave , or leave following adoption, a minimum of 6 months free of chambers ’ rent;

.v -

the procedure for dealing with grievances under the policy;

.vi -

chambers ’ commitment to regularly review the effectiveness of the policy;

Flexible Working
.l -

chambers or BSB authorised body has a flexible working policy which covers the right of a member of chambers , manager or employee (as the case may be) to take a career break, to work part-time, to work flexible hours, or to work from home, so as to enable them to manage their family responsibilities or disability without giving up work;

Reasonable Adjustments Policy
.m -

chambers or BSB authorised body has a reasonable adjustments policy aimed at supporting disabled clients, its workforce and others including temporary visitors;

Appointment of Diversity Data Officer
.n -

chambers or BSB authorised body has a Diversity Data Officer;

.o -

chambers or BSB authorised body must provide the name and contact details of the Diversity Data Officer to the Bar Standards Board and must notify the Bar Standards Board of any change to the identity of the Diversity Data Officer, as soon as reasonably practicable;

Responsibilities of Diversity Data Officer
.p -

The Diversity Data Officer shall comply with the requirements in relation to the collection, processing and publication of diversity data set out in the paragraphs rC110.3.q to .t below;

Collection and Publication of Diversity Data
.q -

The Diversity Data Officer shall invite members of the workforce to provide diversity data in respect of themselves to the Diversity Data Officer using the model questionnaire in Section 7 of the BSB’s Supporting Information on the BSB Handbook Equality Rules (https://www.barstandardsboard.org.uk/media/1596730/bsb_equality_rules_handbook_june_2014.pdf);

.r -

The Diversity Data Officer shall ensure that such data is anonymised and that an accurate and updated summary of it is published on chambers’ or BSB authorised body’s website every three years.  If chambers or the BSB authorised body does not have a website, the Diversity Data Officer shall make such data available to the public on request;

.s -

The published summary of anonymised data shall:

.i -

exclude diversity data relating to the characteristics of sexual orientation and religion or belief, unless there is consent from each of the members of the workforce; and

.ii -

exclude diversity data in relation to any characteristic where there is a real risk that individuals could be identified, unless all affected individuals consent; and

.iii -

subject to the foregoing, include anonymised data in relation to each characteristic, categorised by reference to the job title and seniority of the workforce .

.t -

The Diversity Data Officer shall:

.i -

ensure that chambers or BSB authorised body has in place a written policy statement on the collection, publication, retention and destruction of diversity data which shall include an explanation that the provision of diversity data is voluntary;

.ii -

notify the workforce of the contents of the written policy statement; and

.iii -

ask for explicit consent from the workforce to the provision and processing of their diversity data in accordance with the written policy statement and these rules, in advance of collecting their diversity data .

rC111 -

For the purposes of Rule C110 above, the steps which it is reasonable for you to take will depend on all the circumstances, which include, but are not limited to:

.1 -

the arrangements in place in your chambers or BSB authorised body for the management of chambers or the BSB authorised body; and

.2 -

any role which you play in those arrangements.

rC112 -

For the purposes Rule C110 above “allocation of unassigned work” includes, but is not limited to work allocated to:

.1 -

pupils;

.2 -

barristers of fewer than four years' standing ; and

.3 -

barristers returning from parental leave;

Guidance to Rule C110 and Rule C111
gC140 -

Rule C110 places a personal obligation on all self-employed barristers, however they practise, and on the managers of BSB authorised bodies, as well as on the entity itself, to take reasonable steps to ensure that they have appropriate policies which are enforced.

gC141 -

In relation to Rule C110, if you are a Head of chambers or a HOLP it is likely to be reasonable for you to ensure that you have the policies required by Rule C110, that an Equality and Diversity Officer is appointed to monitor compliance, and that any breaches are appropriately punished. If you are a member of a chambers you are expected to use the means available to you under your constitution to take reasonable steps to ensure there are policies and that they are enforced.  If you are a manager of a BSB authorised body , you are expected to take reasonable steps to ensure that there are policies and that they are enforced.

gC142 -

For the purpose of Rule C110 training means any course of study covering all the following areas:

a)                Fair and effective selection & avoiding unconscious bias

b)                Attraction and advertising

c)                Application processes

d)                Shortlisting skills

e)                Interviewing skills

f)                Assessment and making a selection decision

g)                Monitoring and evaluation

gC143 -

Training may be undertaken in any of the following ways:

a)             Classroom sessions.

b)             Online sessions

c)              Private study of relevant materials such as the Bar Council’s Fair Recruitment Guide

d)              Completion of CPD covering fair recruitment and selection processes

gC144 -

The purpose of Rule C110.3.d is to ensure that applicants with relevant characteristics are not refused employment because of such characteristics.  In order to ensure compliance with this rule, therefore, it is anticipated that the Equality and Diversity Officer will compile and retain data about the relevant characteristics of all applicants for the purposes of reviewing the data in order to see whether there are any apparent disparities in recruitment.

gC145 -

For the purpose of Rule C110 “regular review”, means as often as is necessary in order to ensure effective monitoring and review takes place. In respect of data on pupils it is likely to be considered reasonable that "regularly" should mean annually. In respect of managers of a BSB authorised body or tenants, it is likely to be considered reasonable that "regularly" should mean every three years unless the numbers change to such a degree as to make more frequent monitoring appropriate.

gC146 -

For the purposes of Rule C110, “remedial action” means any action aimed at removing or reducing the disadvantage experienced by particular relevant groups. Remedial action cannot, however, include positive discrimination in favour of members of relevant groups.

gC147 -

Rule C110.3.f.iii places an obligation on practice s to take reasonable steps to ensure the work opportunities are shared fairly among its workforce .  In the case of chambers , this obligation includes work which has not been allocated by the solicitor to a named barrister . It includes fairness in presenting to solicitors names for consideration and fairness in opportunities to attract future named work (for example, fairness in arrangements for marketing).  These obligations apply even if individual members of chambers incorporate their practices, or use a "ProcureCo" to obtain or distribute work, as long as their relationship between each other remains one of independent service providers competing for the same work while sharing clerking arrangements and costs.

gC148 -

Rule C110.3.k.iv sets out the minimum requirements which must be included in a parental and adoption leave policy if any element of rent is paid on a flat rate.  If rent is paid on any other basis, then the policy should be drafted so as not to put any self-employed barrister in a worse position than he would have been in if any element of the rent were paid on a flat rate.

gC149 -

For the purposes of Rule C110 above investigation means, considering the reasons for disparities in data such as:

.1 -

Under or overrepresentation of particular groups e.g. men, women, different ethnic groups or disabled people

.2 -

Absence of particular groups e.g. men, women, different ethnic groups or disabled people.

.3 -

Success rates of particular groups.

.4 -

In the case of chambers, over or under allocation of unassigned work to particular groups

gC150 -

These rules are supplemented by the BSB’s Supporting Information on the BSB Handbook Equality Rules (”the Supporting Information”): https://www.barstandardsboard.org.uk/media/1562168/bsb_equality_rules_handbook_corrected.pdf. These describe the legal and regulatory requirements relating to equality and diversity and provide guidance on how they should be applied in chambers and in BSB authorised bodies. If you are a self-employed barrister , a BSB authorised body , or a manager of a BSB authorised body , you should seek to comply with the Supporting Information as well as with the rules as set out above.

gC151 -

The Supporting Information is also relevant to all pupil supervisors and authorised training organisations. These will be expected to show how they comply with the Supporting Information as a condition of authorisation.

gC152 -

Although the Supporting Information does not apply directly to BSB authorised persons working as employed barristers (non-authorised bodies) or employed barristers ( authorised non-BSB body ), they provide helpful guidance which you are encouraged to take into account in your practice.

D1.3 - PUPILLAGE FUNDING

Funding
rC113 -

The members of a set of chambers or the BSB authorised body must pay to each non-practising pupil (as appropriate), by the end of each month of the non-practising six months of his pupillage no less than:

.1 -

the specified amount ; and

.2 -

such further sum as may be necessary to reimburse expenses reasonably incurred by the pupil on:

.3 -

travel for the purposes of his pupillage during that month; and

.4 -

attendance during that month at courses which he is required to attend as part of his pupillage .

rC114 -

The members of a set of chambers , or the BSB authorised body , must pay to each practising pupil by the end of each month of the practising six months of his pupillage no less than:

.1 -

the specified amount ; plus

.2 -

such further sum as may be necessary to reimburse expenses reasonably incurred by the pupil on:

.a -

travel for the purposes of his pupillage during that month; and

.b -

attendance during that month at courses which he is required to attend as part of his pupillage ; less

.c -

such amount, if any, as the pupil may receive during that month from his practice as a barrister ; and less

.d -

such amounts, if any, as the pupil may have received during the preceding months of his practising pupillage from his practice as a barrister , save to the extent that the amount paid to the pupil in respect of any such month was less than the total of the sums provided for in sub-paragraphs rC114.2.a and .b above.

rC115 -

The members of a set of chambers , or the BSB authorised body , may not seek or accept repayment from a chambers pupil or an entity pupil of any of the sums required to be paid under Rules C113 and C114 above, whether before or after he ceases to be a chambers pupil or an entity pupil , save in the case of misconduct on his part.

Application
rC117 -

The requirements set out in Rules C113 to C116 above:

.1 -

do not apply in the case of pupils who were granted exemption from the vocational stage of training under Rule Q73;

.2 -

do not apply in the case of pupils who are doing a period of pupillage in a set of chambers , or in a BSB authorised body , as part of a training programme offered by another organisation which is authorised by the Bar Standards Board to take pupils;

.3 -

do not apply in the case of pupils who have completed both the non-practising and the practising six months of pupillage ;

.4 -

save as provided in Rule C117.3 above, do not apply in respect of any period after a pupil ceases, for whatever reason, to be a chambers pupil or an entity pupil ; and

.5 -

may be waived in part or in whole by the Pupillage Funding Committee of the BSB.

rC118 -

For the purposes of these requirements:

.1 -

chambers pupil ” means, in respect of any set of chambers , a pupil doing the non-practising or practising six months of pupillage with a pupil   supervisor , or pupil supervisors, who is or are a member, or members, of that set of chambers ;

.2 -

“entity pupil ” means, in respect of a BSB authorised body , a pupil doing the non-practising or practising six months of pupillage with a pupil -master or pupil -masters who are managers or employees of such BSB authorised body ;

.3 -

“non-practising pupil ” means a chambers pupil or an entity pupil doing the non-practising six months of pupillage ;

.4 -

“practising pupil ” means a chambers pupil or an entity pupil doing the practising six months of pupillage ;

.5 -

“month” means calendar month starting on the same day of the month as that on which the pupil began the non-practising, or practising, six months pupillage , as the case may be;

.6 -

any payment made to a pupil by a barrister pursuant to Rule C115 above shall constitute an amount received by the pupil from his practice as a barrister ; and

.7 -

the following travel by a pupil shall not constitute travel for the purposes of his pupillage :

.a -

travel between his home and chambers or, for an entity pupil , his place of work; and

.b -

travel for the purposes of his practice as a barrister .

D2 - Barristers undertaking Public Access and Licensed Access Work

Outcomes

oC30 -

Barristers undertaking publicaccess or licensed access work have the necessary skills and experience required to do work on that basis.

oC31 -

Barristers undertaking public access or licensed access work maintain appropriate records in respect of such work.

oC32 -

Clients only instruct via public access when it is in their interests to do so and they fully understand what is expected of them

D2.1 - PUBLIC ACCESS RULES

rC119 -

These rules apply to barristers instructed by or on behalf of a lay client (other than a licensed access client ) who has not also instructed a solicitor or other professional client (public access clients).  Guidance on public access rules is available on the Bar Standards Board website: https://www.barstandardsboard.org.uk/regulatory-requirements/bsb-handbook/code-guidance/

 

 

rC120 -

Before accepting any public access instructions from or on behalf of a public access client, a barrister must:

.1 -

be properly qualified by having been issued with a full practising certificate , by having satisfactorily completed the appropriate public access training, and by registering with the Bar Council as a public access practitioner;

.2 -

if a barrister was already registered with the Bar Council to undertake public access work on October 4 2013 then he must undertake any additional training required by the Bar Standards Board within 24 months of that date or cease to undertake public access work;

.3 -

take such steps as are reasonably necessary to ascertain whether it would be in the best interests of the client or in the interests of justice for the public access client to instruct a solicitor or other professional client ; and

.4 -

take such steps as are reasonably necessary to ensure that the client is able to make an informed decision about whether to apply for legal aid or whether to proceed with public access.

rC121 -

A barrister with less than three years’ standing who has completed the necessary training must:

.1 -

A barrister with less than three years' standing who has completed the necessary training must:

.1 Have a barrister who is a qualified person within Rule S22 and has registered with the Bar Council as a public access practitioner readily available to provide guidance to the barrister ;

.2 -

Maintain a log of public access cases they have dealt with, including any issues or problems which have arisen;

.3 -

Seek appropriate feedback from their public access clients on the service provided;

.4 -

Make this log available, on request, to the Bar Standards Board for review.

rC122 -

A barrister may not accept direct instructions from or on behalf of a public access client in or in connection with any matter of proceedings in which, in all the circumstances, it would be in the best interests of the public access client or in the interests of justice for the public access client to instruct a solicitor or other professional client .

rC123 -

In any case where a barrister is not prohibited from accepting instructions , the barrister must at all times consider the developing circumstances of the case, and whether at any stage it is in the best interests of the public access client or in the interests of justice for the public access client to instruct a solicitor or other professional client . If, after accepting direct instructions from a public access client a barrister forms the view that circumstances are such that it would be in the best interests of the public access client , or in the interests of justice for the public access client to instruct a solicitor or other professional client the barrister must:

.1 -

inform the public access client of his view; and

.2 -

withdraw from the case in accordance with the provisions of Rules C25 and rC26 and associated guidance unless the client instructs a solicitor or other professional client to act in the case.

rC124 -

A barrister must have regard to guidance published from time to time by the Bar Standards Board in considering whether to accept and in carrying out any public access instructions .

rC125 -

A barrister who accepts public access instructions must forthwith notify his public access client in writing, and in clear and readily understandable terms, of:

.1 -

the work which the barrister has agreed to perform;

.2 -

the fact that in performing his work the barrister will be subject to the requirements of  Parts 2 and 3 of this Handbook and, in particular, Rules C25 and C26;

.3 -

unless authorised to conduct litigation by the Bar Standards Board, the fact that the barrister cannot be expected to perform the functions of a solicitor or other authorised litigator and in particular to fulfil limitation obligations, disclosure obligations and other obligations arising out of or related to the conduct of litigation ;

.4 -

the fact that the barrister is a self-employed, is not a member of a firm and does not take on any arranging role;

.5 -

in any case where the barrister has been instructed by an intermediary :

.a -

the fact that the barrister is independent of and has no liability for the intermediary ; and

.b -

the fact that the intermediary is the agent of the lay client and not the agent of the barrister ;

.6 -

the fact that the barrister may be prevented from completing the work by reason of his professional duties or conflicting professional obligations, and what the client can expect of the barrister in such a situation;

.7 -

the fees which the barrister proposes to charge for that work, or the basis on which his fee will be calculated;

.8 -

the barrister’s contact arrangements; and

.9 -

the information about the barrister’s complaints procedure required by D1.1 of this Part 2.

rC126 -

Save in exceptional circumstances, a barrister will have complied with Rule C125 above if he has written promptly to the public access client in the terms of the model letter provided on the Bar Standards Board website.

rC127 -

In any case where a barrister has been instructed by an intermediary , he must give the notice required by Rule C123 above both:

.1 -

directly to the public access client ; and

.2 -

to the intermediary .

rC128 -

A barrister who accepts  public access instructions must keep a case record which sets out:

.1 -

the date of receipt of the instructions , the name of the lay client , the name of the case, and any requirements of the client as to time limits;

.2 -

the date on which the instructions were accepted;

.3 -

the dates of subsequent instructions , of the despatch of advices and other written work, of conferences and of telephone conversations;

.4 -

when agreed, the fee.

rC129 -

barrister who accepts public access instructions must either himself retain or take reasonable steps to ensure that the lay client will retain for at least seven years after the date of the last item of work done:

.1 -

copies of all instructions (including supplemental instructions );

.2 -

copies of all advices given and documents drafted or approved;

.3 -

the originals, copies or a list of all documents enclosed with any instructions ;

.4 -

notes of all conferences and of all advice given on the telephone.

rC130 -

A barrister who has accepted public access instructions may undertake correspondence where it is ancillary to permitted work, and in accordance with the guidance published by the Bar Standards Board .

rC131 -

Save where otherwise agreed:

.1 -

a barrister shall be entitled to copy all documents received from his lay client , and to retain such copies permanently;

.2 -

a barrister shall return all documents received from his lay client on demand, whether or not the barrister has been paid for any work done for the lay client ;

.3 -

a barrister shall not be required to deliver to his lay client any documents drafted by the barrister in advance of receiving payment from the lay client for all work done for that client

.4 -

a barrister who has accepted public access instructions in any civil matter may take a proof of evidence from his client in that matter.

D2.2 - LICENSED ACCESS RULES

rC132 -

Subject to these rules and to compliance with the Code of Conduct (and to the Scope of Practice, Authorisation and Licensing Rules) a barrister in self-employed practice may accept instructions froma licensed access client in circumstances authorised in relation to that client by the Licensed Access Recognition Regulations (https://www.barstandardsboard.org.uk/regulatory-requirements/for-barristers/licensed-access-recognition-regulations/) whether that client is acting for himself or another.

rC133 -

These rules apply to every matter in which a barrister in self-employed practice is instructed by a licensed access client save that Rules C134.2, C136, C137 and C139 do not apply to any matter in which a licensed access client is deemed to be a licensed access client by reason only of paragraph 7 or paragraph 8 of the Licensed Access Recognition Regulations (https://www.barstandardsboard.org.uk/regulatory-requirements/for-barristers/licensed-access-recognition-regulations/)

rC134 -

A barrister is only entitled to accept instructions from a licensed access client if at the time of giving instructions the licensed access client :

.1 -

is identified; and

.2 -

sends the barrister a copy of the Licence issued by the Bar Standards Board .

rC135 -

A barrister must not accept any instructions from a licensed access client :

.1 -

unless the barrister and his chambers are able to provide the services required of them by that licensed access client ;

.2 -

if the barrister considers it in the interests of the lay client or the interests of justice that a solicitor or other authorised litigator or some other appropriate intermediary (as the case may be) be instructed either together with or in place of the barrister .

rC136 -

A barrister who accepts instructions from a licensed access client otherwise than on the terms of the Licensed Access Terms of Work: 

.1 -

must first agree in writing the terms upon which he has agreed to do the work and the basis upon which he is to be paid;

.2 -

must keep a copy of the agreement in writing with the licensed access client setting out the terms upon which he has agreed to do the work and the basis upon which he is to be paid.

rC137 -

A barrister who accepts instructions from a licensed access client :

.1 -

must promptly send the licensed access client :

.2 -

a statement in writing that the instructions have been accepted (as the case may be) (1) on the standard terms previously agreed in writing with that licensed access client or (2) on the terms of the    Licensed Access Terms of Work (and thereafter if requested a copy of the Licensed Access Terms of Work); or

.3 -

if he has accepted instructions otherwise than on such standard terms or on the terms of the Licensed Access Terms of Work, a copy of the agreement in writing with the licensed access client setting out the terms upon which he has agreed to do the work and the basis upon which he is to be paid;

.4 -

unless he has accepted instructions on the terms of the   Licensed Access Terms of Work or on terms which incorporate the following particulars must at the same time advise the licensed access client in writing of:

.a -

the effect of rC21 as it relevantly applies in the circumstances;

.b -

unless authorised by the Bar Standards Board to conduct litigation , the fact that the barrister cannot be expected to perform the functions of a solicitor or other authorised litigator and in particular to fulfil limitation obligations disclosure obligations and other obligations arising out of or related to the conduct of litigation

.c -

the fact that circumstances may require the client to retain a solicitor or other authorised litigator at short notice and possibly during the case.

rC138 -

If at any stage a barrister who is instructed by a licensed access client considers it in the interests of the lay client or the interests of justice that a solicitor or other authorised litigator or some other appropriate intermediary (as the case may be) be instructed either together with or in place of the barrister :

.1 -

the barrister must forthwith advise the licensed access client in writing to instruct a solicitor or other authorised litigator or other appropriate intermediary (as the case may be); and

.2 -

unless a solicitor or other authorised litigator or other appropriate intermediary (as the case may be) is instructed as soon as reasonably practicable thereafter the barrister must cease to act and must return any instructions .

rC139 -

If at any stage a barrister who is instructed by a licensed access client considers that there are substantial grounds for believing that the licensed access client has in some significant respect failed to comply either with the terms of the Licence granted by the Bar Standards Board or (where applicable) with the terms of the   Licensed Access Terms of Work the barrister must forthwith report the facts to the Bar Standards Board .

rC140 -

A barrister who accepts instructions from a licensed access client must keep a case record (whether on card or computer) which sets out:

.1 -

the date of receipt of the instructions , the name of the licensed access client , the name of the case, and any requirements of the licensed access client as to time limits;

.2 -

the date on which the instructions were accepted;

.3 -

the dates of subsequent instructions , of the despatch of advices and other written work, of conferences and of telephone conversations;

.4 -

when agreed, the fee.

rC141 -

A barrister who accepts instructions from a licensed access client must either himself retain or take reasonable steps to ensure that the licensed access client will retain for six years after the date of the last item of work done:

.1 -

copies of instructions (including supplemental instructions );

.2 -

copies of all advices given and documents drafted or approved;

.3 -

a list of all documents enclosed with any instructions ;

.4 -

notes of all conferences and of all advice given on the telephone.

D3 - Registered European Lawyers

Outcomes

oC33 -

Clients are not confused about the qualifications and status of registered European lawyers.

Rules

rC142 -

If you are a registered European lawyer and not a barrister , you must not hold yourself out to be a barrister .

rC143 -

You must in connection with all professional work undertaken in England and Wales as a registered European lawyer :

.1 -

use your home professional title ;

.2 -

indicate the name of your home professional body or the court before which you are entitled to practise in that Member State ; and

.3 -

indicate that you are registered with the Bar Standards Board as a European lawyer .

D4 - Unregistered Barristers

Outcomes

oC34 -

Client s who receive legal services from unregistered barristers are aware that such unregistered barristers are not subject to the same regulatory safeguards that would apply if they instructed a practising barrister .

Rules

rC144 -

If you are an unregistered barrister and you supply legal services (other than as provided for in Rule C145) to any inexperienced client then, before supplying such services:

.1 -

you must explain to the client that:

.a -

(unless you are supplying legal services pursuant to Rule S12) you are not acting as a barrister ;

.b -

you are not subject to those parts of the Code of Conduct and other provisions of this Handbook which  apply only to BSB authorised persons ;

.c -

the Bar Standards Board will only consider complaints about you which concern the Core Duties or those parts of the Code of Conduct and other provisions of this Handbook which apply to you;

.d -

(unless you are covered by professional indemnity insurance) you are not covered by professional indemnity insurance;

.e -

they have the right to make a complaint , how they can complain, to whom,  of any time limits for making a complaint but that they have no right to complain to the Legal Ombudsman about the services you supply;

.2 -

you must get written confirmation from the client that you have given this explanation.

For the purposes of this Rule C144, an inexperienced client includes any individual or other person who would, if you were a BSB authorised person ,have a right to bring a complaint pursuant to the Legal Ombudsman Scheme Rules.

Guidance on Rule rC144
gC153 -

For the purposes of determining whether Rule C144 applies, the people who would be entitled to complain to the Legal Ombudsman if you were a BSB authorised person are:

.1 -

an individual; or

.2 -

a business or  enterprise that was a micro-enterprise within the meaning of Article 1 and Article 2(1) and (3) of the Annex to Commission Recommendation 2003/361/EC (broadly a business or enterprise with fewer than 10 employees and turnover or assets not exceeding €2 million), when it referred the complaint to you; or

.3 -

a charity with an annual income net of tax of less than £1 million at the time at which the complainant refers the complaint to you; or

.4 -

a club, association or organisation, the affairs of which are managed by its members or a committee of its members, with an annual income net of tax of less than £1 million at the time at which the complainant refers the complaint to you; or

.5 -

a trustee of a trust with an asset value of less than £1 million at the time at which the complainant refers the complaint to you; or

.6 -

a personal representative or beneficiary of the estate of a person who, before he or she died, had not referred the complaint to the Legal Ombudsman.

rC145 -

rC144 does not apply to you if you supply legal services :

.1 -

as an employee or manager of an authorised body;

.2 -

as an employee or manager of a body subject to regulation by a professional body or regulator;

.3 -

as provided for in Section S.B9 (Legal Advice Centres);

.4 -

pursuant to an authorisation that you have obtained from another approved regulator ; or

.5 -

in accordance with Rules S13 and S14

Guidance on Rule C145
gC154 -

Guidance on the disclosures which unregistered barristers should consider making to clients covered by Rule C145, and other clients who are not inexperienced clients, to ensure that they comply with Rule C19 and do not mislead those client s is available on BSB website: https://www.barstandardsboard.org.uk/regulatory-requirements/the-code-of-conduct/code-guidance/.

 

 

D5 - Cross Border Activities within the european union and the European Economic Area

Outcomes

oC35 -

BSB regulated persons who undertake cross-border activities comply with the terms of the Code of Conduct for European Lawyers .

Rules

rC146 -

If you are a BSB regulated person undertaking cross-border activities then, in addition to complying with the other provisions of this Handbook which apply to you, you must also comply with Rules C147 to C158 below.   

Guidance on Rule C146
gC155 -

Where the cross-border activities constitute foreign work (in other words, limb (a) of the definition of cross-border activities), you should note, in particular, Rules C13 and C14 and the associated guidance.

gC156 -

The purpose of this section D5 is to implement those provisions of the Code of Conduct for European Lawyers which are not otherwise covered by the Handbook .  If a provision of the Code of Conduct for European Lawyers has not been included here then the equivalent provisions of Handbook need to be complied with in respect of all cross-border activities (including where they place a higher burden on the BSB regulated person than the Code of Conduct for European Lawyers itself which is the case, for example, in respect of the handling of client money (Rule C73 and C74)). 

Incompatible Occupations
rC147 -

If you act in legal proceedings or proceedings before public authorities in a CCBE State other than the UK , you must, in that CCBE State , observe the rules regarding incompatible occupations as they are applied to lawyers of that CCBE State .

rC148 -

If you are established in a CCBE State other than the UK and you wish to participate directly in commercial or other activities not connected with the practice of the law in that CCBE State , you must respect the rules regarding forbidden or incompatible occupations as they are applied to lawyers of that CCBE State .

Fee Sharing with Non-Lawyers
rC149 -

You must not share your fees with a person situated in a CCBE State other than the UK who is not a lawyer except where otherwise permitted by the terms of this Handbook or Rule C150 below.

rC150 -

Rule C149 shall not preclude you from paying a fee, commission or other compensation to a deceased lawyer's heirs or to a retired lawyer in respect of taking over the deceased or retired lawyer's practice.

Co-operation among Lawyers of Different Member States
rC151 -

If you are approached by a lawyer of a CCBE State other than the UK to undertake work which you are not competent to undertake, you must assist that lawyer to obtain the information necessary to find and instruct a lawyer capable of providing the service asked for.

rC152 -

When co-operating with a lawyer of a CCBE State other than the UK you must take into account the differences which may exist between your respective legal systems and the professional organisations, competencies and obligations of lawyers in your respective states.

Correspondence between lawyers in different CCBE States
rC153 -

If you want to send to a lawyer in a CCBE State other than the UK a communication which you wish to remain "confidential" or "without prejudice", you must, before sending the communication, clearly express your intention in order to avoid misunderstanding, and ask if the lawyer is able to accept the communication on that basis.

rC154 -

If you are the intended recipient of a communication from a lawyer in another CCBE State which is stated to be "confidential" or "without prejudice", but which you are unable to accept on the basis intended by that lawyer, you must inform that lawyer accordingly without delay.

Responsibility for Fees
rC155 -

If in the course of practice you instruct a lawyer of a CCBE State other than the UK to provide legal services on your behalf, you must pay the fees, costs and outlays which are properly incurred by that lawyer (even where the client is insolvent) unless:

.1 -

you were simply introducing the client to him and the lawyer of the CCBE State other than the UK has since had a direct contractual relationship with the client ; or

.2 -

you have expressly disclaimed that responsibility at the outset, or at a later date you have expressly disclaimed responsibility for any fees incurred after that date; or the lawyer of the CCBE State other than the UK is, in the particular matter, practising as a lawyer in England or Wales (whether authorised by the BSB or any other Approved Regulator ).

Disputes Amongst Lawyers in Different Member States
rC156 -

If you consider that a lawyer in a CCBE State other than the UK has acted in breach of a rule of professional conduct you must draw the breach to the other lawyer's attention.

rC157 -

If any personal dispute of a professional nature arises between you and a lawyer in a CCBE State other than the UK you must first try to settle it in a friendly way.

rC158 -

You must not commence any form of proceedings against a lawyer in a CCBE State other than the UK on matters referred to in Rules C156 or C157 without first informing the Bar Council and the other lawyer's bar or law society in order to allow them an opportunity to assist in resolving the matter.