FAQs Continued

 

A51. The Bar Standards Board is currently undertaking a consultation exercise on this issue.  The Guidance below is current for the time being, but may well be amended in due course.

 

The Conduct Committee has considered the general issue of barristers giving gifts to solicitors and other intermediaries entitled to instruct them. The Committee’s opinion was that paragraph 307(d) of the Code of Conduct which states that; "a barrister must not give a commission or present or lend any money for any professional purpose to…..any person entitled to instruct him as an intermediary" would prohibit a barrister (and effectively his clerk or his Chambers as a whole) from giving to a solicitor or intermediary a gift, however modest, of any kind.

 

The Conduct Committee has however deemed it to be acceptable for a barrister to  take a solicitor or intermediary out for dinner at the conclusion of a case.  The same would apply for Chambers offering hospitality to a firm of solicitors or other intermediary.  For example, it would be permissible for Chambers who were sponsoring a cricket match to invite a firm of solicitors who routinely instruct members of chambers to watch the game.

 

 

A52. It will depend on the nature of the present and whether you are continuing to represent the client. The Conduct Committee has ruled that if the barrister’s involvement in a case has ended and that there is unlikely to be any appeal, Counsel may accept a gift from lay clients, provided that the gift is relatively modest and unlikely to bring Counsel’s independence into question.  Money, gift vouchers and so forth, should generally be avoided.  Furthermore, any gift received should not be of excessive value or disproportionate to the work done by Counsel.  If Counsel feels that accepting a particular gift will cause him or her embarrassment, it should be returned with a suitable note of thanks either to the client direct or through the instructing solicitor. If in doubt about individual gifts, Counsel should seek advice from the ethical help line.

 

 

A53. Charging for clerical work undertaken in chambers which is ancillary to a legal service, such as photocopying documents to be worked on by a barrister, is acceptable.  However, barristers are strongly urged to ensure that such charging is expressly agreed between barrister and client in advance. Charging for ancillary administration, for example, attending listing officers to obtain fixed dates for hearings, is the sort of service which should be covered by the brief fee or time charges. It is not acceptable for a barrister to charge a fee for advice given by his clerk as clerks provide support to barristers and not the barristers’ clients.  No legal advice of any description should be given by the clerk. The barrister should deal with all questions, no matter how straightforward they appear to be.  Barristers may wish to provide a general information sheet to clients which deals with frequently asked questions.

 

 

A54. The normal course would be for counsel whose instructing solicitors have withdrawn to withdraw too as the solicitors’ instructions are no longer operative.  However, there are situations in which counsel may feel able to continue.  As a general rule, if the absconding occurs late in the proceedings, it is more likely that counsel could continue.  It is entirely a matter for counsel’s discretion. 

 

If the absconding occurs before trial then the position is more difficult.  The Court would appoint you to act, and it would have to say what it requires you to do.  For example, you might be asked to test the evidence, put forward an assertive defence (perhaps from the interview record) or act simply to guard against legal errors or irregularities. "Act in the best interests of the lay client" would not be sufficient instructions.  It would not be proper for you to use material given to you as part of your instructions by a professional client who has withdrawn.  Since you will have probably seen that material it may be difficult for you to act without referring to it or without the appearance of having referred to it - a problem not shared by ‘fresh’ counsel.

 

In short, you are not bound to withdraw from the case but you retain an absolute discretion to do so.  In considering that discretion, however, you should think carefully about accepting instructions from the Court to continue to act for an absent defendant.  If your instructing solicitors took the view that they did not have sufficiently complete and final instructions to permit their continuing to act then your position is unlikely to be any better.

The Court of Appeal asked the professions to consider the position again and this is being done.  However, until such time as the Rules Committee makes any change (if it does) the Code should be followed in its present form.

 

 

A55. The Code of Conduct permits you to offer advice free to a friend or relative and, as this is not deemed to be a legal service, you do not need instructions from a professional client in order to give such advice.  Of course, were you to provide advice on an aspect of the law with which you were unfamiliar, you might run the risk of a complaint being made against you under paragraph 301(a) of the Code.  On the other hand, representation is a legal service even if undertaken free.  If you wish to appear on behalf of a friend or relative you must get instructions from a solicitor or, alternatively, accept instructions directly from the client if you have done the necessary training under the Public Access Rules and comply with all the necessary client care provisions.

 

The Code does not specifically prevent you appearing at a hearing as a McKenzie friend.  However, you are advised to consider carefully whether you will be acting in the best interests of your friend by assisting in this fashion.  There are many cases which will require preparation of the sort which can only be conducted by a solicitor.  Furthermore, your ability to provide independent advice may be hampered by your friendship.  Should your friend be dissatisfied with the result, not only may a friendship be lost but the litigant, in the absence of any professional indemnity insurance to pursue, may pursue a claim of professional misconduct against you.  Paragraph 301 encompasses conduct "...whether in pursuit of his profession or otherwise...” These words are wide enough to include the role of a McKenzie friend.

 

You are advised to consider the Code as a whole and in particular paragraphs 303(a), 307(a) and 401(b) before agreeing to act as a McKenzie friend.  It is unwise to undertake this role unless you believe that there is no risk to your professional practice.

 

 

A56. Upon call to the Bar barristers automatically become entitled to administer oaths regardless of whether they have completed pupillage. However, they are not automatically entitled to act as a Notary Public. To become a member of the notarial profession it is necessary to obtain a Diploma in Notarial Practice and then to acquire a Faculty from the Master of Faculties at the Faculty Office of the Archbishop of Canterbury.

Guidance has been published for those members of the Bar who are qualified to act as a Notary Public on the extent to which practice in the two professions can be combined. The work of notaries extends beyond the function of authenticating legal documents for use abroad into wider functions that are not normally permitted to practising barristers. This guidance is on the Bar Council’s website at www.barcouncil.org.uk

Q57. Does a barrister have a lien over papers in the event of non-payment of fees?

A57. The Bar Council is not aware of any authority by which barristers gain a general lien on documents belonging to the client until the fees are paid. While there seems to be nothing in the law to invalidate an express agreement made between a barrister and a client (especially in public access cases) permitting the barrister to exercise such a lien, it is doubtful whether in practice a lien would be of much assistance to a barrister as a client is already likely to have all the correspondence files and other documents.

Q58. My lay client and his instructing solicitor have fallen out and my lay client is now instructing another firm. He has not paid his previous solicitors. I still possess a number of papers in the case forwarded to me by the first solicitors. The second solicitors wish to instruct me. Am I able to make use of the papers?

A58. You should ask the first solicitors whether they wish to claim a lien. If they do not, you may use the papers. If they do, you should return the papers to them and may not use them to assist you when instructed by the new solicitors. There is, however, nothing to prevent you using any notes that you may have taken for your own use when instructed by the previous solicitors to assist you at this later stage.

Q59. I am a witness in court and I have been asked a question, which, to answer, would breach my duty of confidentiality to my lay client. There has been no waiver. What should I do?

A59. You should put the court to the test. Raise the issue of privilege and ask the Judge to rule whether it applies in this case or not. If he rules that the evidence is not covered by legal professional privilege and requires you to answer the question, you should do so.

Q60. My clerk has accepted a brief for me to appear in court at a time when I am booked to be on holiday.  Can I return the brief?

A60. Not without the consent of your instructing solicitor.  Paragraph 506(c) of the Code of Conduct states that you must not return a brief which you have accepted and for which a fixed date has been obtained or break any other professional engagement so as to enable you to attend a social or non-professional engagement.  You may, of course, discuss with your instructing solicitor the possibility of him instructing somebody else.

Q61. May I be a director of a company?

A61. Yes, provided that the company is not a device whereby you are offering legal services directly or indirectly to members of the public.  As a director of the company, you may give the company the benefit of your legal knowledge in respect of general issues of law.  You may not, however, be instructed to act on that company’s behalf or to advise it on individual questions of law.

Q.62. A barrister has left chambers owing a substantial amount in rent and clerks’ fees.  Can we hold back cheques that he has received in respect of fees until he pays chambers what he owes?

A62. Only if your chambers constitution or some other agreement among members of chambers expressly permits to you do so and this has been expressly agreed by the individual concerned.  Even then, the Bar Council could not guarantee that chambers would be within its legal rights in doing so and certainly would not recommend it as good practice.  Generally, cheques are the property of the barrister and must be forwarded promptly.  In these circumstances, chambers' remedies lie in the courts or with the Bar Council’s arbitration service, if there is a dispute over the amount payable.

 

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