The BSB Handbook

gC3

Rules rC3 – rC6 set out some specific aspects of your duty to the court (CD1). See CD1 and associated Guidance at gC1.

gC4

As to your duty not to mislead the court:

.1 knowingly misleading the court includes being complicit in another person misleading the court;

.2 knowingly misleading the court also includes inadvertently misleading the court if you later realise that you have misled the court, and you fail to correct the position;

.3 recklessly means being indifferent to the truth, or not caring whether something is true or false; and

.4 the duty continues to apply for the duration of the case.

gC5

Your duty under Rule rC3.4 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 rC6 if you make the position clear to the court. See, further, the guidance at gC14.

gC8

As set out in Rule rC5, 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. There may be situations where you have obligations under both these rules.

gC9

Rule rC4 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 they have committed the crime with which they were charged, in order to be able to ensure compliance with Rule rC4 on the one hand and Rule rC3 and Rule rC6 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 rC5 and rC6 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 submitting to the jury, that your client did not commit the crime; 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 rC25 to rC27 below. In these circumstances you must not reveal the information to the court.

gC12

For example, if your client tells you that they have previous convictions of which the prosecution is not aware, you may not disclose this without their 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 law. In 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 been disclosed, you cannot continue to act unless your client agrees to the disclosure of the document. In these circumstances you must not reveal the existence or contents of the document to the court.

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 rC16 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 rC21.10 (not acting where your independence is compromised), rule rC10 (not paying or accepting referral fees) and rC21 (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 C8 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 C9 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 rC10 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 8 (whether or not the circumstances are such that Rule rC10 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 rC10 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 reimbursement 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 gC18 to gC20 above is likely to be more relevant where you are a self-employed barrister, a BSB entity, an authorised (non-BSB) individual, an employed barrister (BSB entity) or a manager of a BSB entity. 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 approved regulator or employer (as appropriate) permits payments to which Rule rC10 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 gC32).

Media comment

gC22

The ethical obligations that apply in relation to your professional practice generally continue to apply in relation to media comment. In particular, barristers should be aware of the following:

• Client’s best interests: Core Duty 2 and Rules C15.1-.2 require a barrister to promote fearlessly and by all proper and lawful means the lay client’s best interests and to do so without regard to their own interests.

• Independence: Core Duties 3 and 4 provide that you must not permit your absolute independence, integrity and freedom from external pressures to be compromised.

• Trust and confidence: Core Duty 5 provides that you must not behave in a way which is likely to diminish the trust and confidence which the public places in you or the profession.

• Confidentiality: Core Duty 6 and Rule C15.5 require you to preserve the confidentiality of your lay client’s affairs and you must not undermine this unless permitted to do so by law or with the express consent of the lay client.

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

gC23

Rule rC9 sets out some specific aspects of your duty under CD3 to act with honesty and also with 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

Conduct which is likely to be treated as a breach of CD3 and/or CD5 includes (but is not limited to):

1. breaches of rC8;
2. breaches of rC9;
3. breaches of rC10;
4. criminal conduct which you are under a duty to report to the Bar Standards Board pursuant to rC65;
5. seriously offensive conduct towards others;
6. dishonesty;
7. unlawful discrimination, victimisation or harassment; or
8. abuse of your professional position.

gC26

For the purposes of gC25.8 above, referring to your status as a barrister in a context where it is irrelevant but may influence others may constitute abuse of your professional position and thus involve a breach of CD3, CD5 and/or rC8. An example of this might be using professional notepaper in a private dispute.

gC27

The application provisions at Section A of Part 2 of this Handbook (the Code of Conduct) set out which Core Duties and rules apply to you and when they apply. Certain Core Duties and rules (such as CD5 and rC8) apply to you at all times and may therefore also be relevant to conduct which occurs in your private or personal life.

To assist in considering whether conduct which occurs in your non-professional life is likely to be treated as a breach of CD5 and/or rC8, the BSB considers that the questions set out in the Guidance on the Regulation of Non-Professional Conduct are likely to be relevant.

gC28

Removed on 20 September 2023.

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;

gC31

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 or death personal injury claims: section 56 Legal Aid, Sentencing and Punishment of Offenders Act 2012 and section 58 Criminal Justice and Courts Act 2015. Rule rC10 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.

gC32

Further guidance is available on the BSB’s website.

gC33

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

gC34

Rules rC110 and associated guidance are also relevant to equality and diversity. The BSB’s Supporting Information on the BSB Handbook Equality Rules is available on the BSB website.

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.

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 rC17 on the circumstances when you are obliged to advise your client to seek other legal representation and Rules rC21.2 and rC21.3 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 rC15 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 entity 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 Continuing Professional Development requirements may not be sufficient to comply with Rule rC15. 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 as to the handling and conduct of police interviews unless you have complied with the following training requirements imposed by the Bar Standards Board: barristers undertaking publicly funded police station work under a criminal contract must comply with the training requirements specified by the Legal Aid Agency. Barristers undertaking privately funded police station work must complete the Police Station Qualification (“PSQ”) and (if they do not hold higher rights of audience) the Magistrates Court Qualification. 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 gC38 above, a BSB entity or a manager of such body should ensure that work 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 gC8 and gC11 to gC13 provide further information.

gC43

Rule rC15.5 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 rC15.5 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 rC21 at gC69 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 rC4 and Guidance gC8 and gC11 to gC13 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 rC64 and Guidance gC92 in respect of that rule provide further information. In addition, Rule rC66 may also apply.

gC46

If you are a pupil of, or are devilling work for, a self-employed barrister, Rule rC15.5 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 rC15.5.

gC48

If you are an authorised individual or a manager working in a BSB entity 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 entity itself is unable to do so for whatever reason (for example, insolvency).

gC49

Your duty to comply with Rule rC17 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 entities Rule S28 and the associated guidance.

gC51

CD2 and Rules rC15.5 and rC17 require you, subject to Rule rC16, 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.

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.

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 rC19 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 rC19 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 rC19. 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 rC19 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 rC19 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 also with integrity (CD3).

gC60

If you are an unregistered barrister, you would breach Rule rC19 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 D4 of this Code of Conduct and the additional guidance for unregistered barristers available on the Bar Standards Board website.

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 rC23 and guidance gC74.

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 entity (in the case of authorised (non-BSB) individuals).

gC65

Nothing in Rule rC20 is intended to prevent you from delegating or outsourcing to any other person discrete tasks (for example, research) which such other person is well-equipped to provide. However, where such tasks are delegated or outsourced, you remain personally responsible for such work. Further, in circumstances where such tasks are being outsourced, Rule rC86 which deals with outsourcing, must be complied with.

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 entity from contracting on the basis that any civil liability for the services provided by a BSB regulated individual lies with the BSB entity 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 rC20 for the professional judgments made.

gC68

See, further, guidance to Rule rC19, as regards work by pupils and devils Rule rC15, gC124 and Rule rC86 (on outsourcing).

gC69

Rules rC21.2, rC21.3 and rC21.4 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 rC21.7 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;

.2 removed

.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 rC75 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 rC21.8 includes your ability to work with vulnerable clients.

gC72

Rule rC21.9 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 rC21.10 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). If it appears that you are likely to be a witness on a material question of fact, and therefore must withdraw from a case as there is a real prospect that you are not going to be able to maintain your independence (Rules C21.10 and C25), you must also comply with Rule C27.

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 entity, you should have regard to the guidance to Rule S28.

gC75

Compliance with the requirement in Rule rC22 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). 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 rC23 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 rC23 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. See, further Rule rC19 (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 rC22 and rC23 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 rC22, 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 rC22 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 on its website.

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 entity, you should have regard to the guidance to Rule S28.

gC83

In deciding whether to cease to act and to return existing instructions in accordance with Rule rC26, 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 rC26.3 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 rC26.3.

gC86

When considering whether or not you are required to return instructions in accordance with Rule rC26.6 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 rC29 to accept the new instructions;

.2 if you are obliged under Rule rC29 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 rC25 to rC26, because the previous instructions have been withdrawn by the client.

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 the Equality Rules in the BSB Handbook and the BSB’s website 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 Criminal Legal Aid and Civil Legal Aid.

gC89

Rule rC30 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 C30.8, 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.

gC91A

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.

gC91B

The standard terms referred to in Rule C30.9.c may be drafted as if the professional client were an authorised person regulated by the Solicitors Regulation Authority (SRA). However, the cab rank rule applies (subject to the various exceptions in Rule C30) to instructions from any professional client, therefore you may be instructed under the cab rank rule by authorised persons who are regulated by another approved regulator.

The BSB expects all authorised persons to be able to access the cab rank rule on behalf of their clients in the same way. Therefore, if you are instructed by an authorised person who is not regulated by the SRA, you are obliged to act on the same terms. You should therefore apply the standard terms referred to in Rule C30.9.c as if (i) the definition of professional client includes that authorised person, and (ii) any references to the SRA or its regulatory arrangements are references to that person’s approved regulator and its regulatory arrangements.

gC92

Your obligations under Rule rC64 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 or unregistered barrister.

gC92A

A notice under rC64.4 refers to a notice under any part of the Legal Services Act 2007, or the Legal Services Act 2007 (General Council of the Bar) (Modification of Functions) Order 2018.

gC93

The documents that you are required to disclose pursuant to Rule C64 may include client information that is subject to legal professional privilege. Pursuant to R (Morgan Grenfell & Co Ltd) v Special Commissioner [2003] 1 A.C. 563, referred to in R (Lumsdon) v Legal Services Board [2014] EWHC 28 (Admin) at [73], the BSB is entitled to serve you with a notice for production of those documents.

Where you are being required to report serious misconduct by others and legal professional privilege applies, this will override the requirement to report serious misconduct by another. However, the BSB may subsequently serve you with a notice for production of documents in which case the same principles set out above apply.

For the avoidance of doubt, none of this casts any doubt on your entitlement to withhold from the BSB any material that is subject to your own legal privilege (such as legal advice given to you about your own position during a BSB investigation).

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 that are “spent” under the Rehabilitation of Offenders Act 1974 unless the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) applies. However, unless the caution or conviction is immediately spent, you must notify the BSB before it becomes spent.

gC103

The prohibition in Rule rC73 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 rC73 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 rC73 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 rC73.

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 client 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 rC73, rC74 and rC75:

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 rC73.

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;

.3 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 rC75.

gC113

Where you are working in a BSB entity, you will satisfy the requirements of Rule rC76.1 so long as the BSB entity has taken out insurance, which covers your activities. A BSB entity 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 rC76 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. Notices issued under Rule C76, which stipulate minimum terms of cover for self-employed barristers and BSB entities, are currently in force and available on the Bar Standards Board’s website.

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. For example, the minimum terms require you to have insurance which covers third party losses in the event of a cyber incident, but it does not require you to have a separate policy which covers your own (“first party”) losses in such an event. You should assess your level of risk in this area to determine whether such protection is necessary.

You should also 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.

BSB regulated persons considering excluding or limiting liability should consider carefully the ramifications of the Unfair Contract Terms Act 1977 and other legislation and case law. If a BSB regulated person is found by the court to have limited liability in a way which is in breach of the Unfair Contract Terms Act, that might amount to professional misconduct.

BSB regulated persons should regularly review the amount of their professional indemnity insurance cover, taking into account the type of work which they undertake and the likely liability for negligence. They should be aware that claims can arise many years after the work was undertaken and that they would be prudent to maintain adequate insurance cover for that time since cover operates on a “claims made” basis and as such it is the policy and the limits in force at the time a claim is made that are relevant, not the policy and limits in force when the work was undertaken. They should also bear in mind the need to arrange run-off cover if they cease practice.

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 rC76. 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

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 rC79 to rC85 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 rC79-85.

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 rC81 and C82 include BSB entities 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 rC21.

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

Rule C86 applies to the outsourcing of clerking services.

gC128

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

gC129

Rule C86 does not apply where you are instructing a pupil or a devil to undertake work on your behalf. Instead rC15 will apply in those circumstances.

gC130

Removed from 11 June 2018.

gC131

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 their 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 C89 does not require you to sever connection with a member of chambers solely because to your knowledge they are found to breach this Handbook, provided that they are not disbarred and comply 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.

gC132

The Supervision Team of the Bar Standards Board reviews the key controls that are in place in chambers and BSB entities 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. 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.

gC133

Your duty under Rule rC89.4 to have proper arrangements in place for dealing with pupils includes ensuring:

.1 that all pupillage vacancies are advertised in the manner set out in the Bar Qualification Manual;

.2 that arrangements are made for the funding of pupils by chambers which comply with the Pupillage Funding Rules (rC113 to rC118); and

.3 the chambers meets the mandatory requirements set out in the Authorisation Framework and complies with conditions imposed upon its authorisation as an Authorised Education and Training Organisation (AETO).

gC134

Your duty under Rule rC89.5 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.

gC135

In order to ensure compliance with Rule rC89.6.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 rC89.8 please refer to the further guidance published by the Bar Standards Board which can be accessed on the Supervision section of its website.

gC137

Rule rC90.3 means that you should consider, in particular, the obligation of each individual members of chambers to act in the best interests of their own client (CD2) and to preserve the confidentiality of their own client’s affairs (CD6), in circumstances where other members of chambers are free (and, indeed, may be obliged by the cab rank rule (rC29) to act for clients with conflicting interests.

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 C94 extends this obligation to BSB entities other than licensed bodies.

gC139

Your duty under Rule rC94.4 to have proper arrangements for dealing with pupils includes ensuring:

.1 that all pupillage vacancies are advertised in the manner manner set out in the Bar Qualification Manual;

.2 that arrangements are made for the funding of pupils by the BSB entity which comply with the Pupillage Funding Rules (rC113 to rC118); and

.3 the BSB entity meets the mandatory requirements set out in the Authorisation Framework and complies with conditions imposed upon its authorisation as an Authorised Education and Training Organisation (AETO).