Pupillage (Bar Vocational Stage) Professional Ethics and Conduct in Practice Syllabus

Professional Ethics and Conduct in Practice syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Professional Ethics and Conduct in Practice in Pupillage (Bar Vocational Stage), not a summary of it.

1. 1

   The BSB Handbook and Core Duties

   3 topics

   • The ten Core Duties
     • Duty to the court in the administration of justice (CD1)
     • Acting in the best interests of each client (CD2)
     • Acting with honesty and integrity (CD3)
     • Maintaining independence (CD4)
     • Public trust and confidence in the profession (CD5)
   • Structure of the BSB Handbook
     • Core Duties, Conduct Rules, Outcomes and Guidance
     • Outcomes-focused regulation
     • Relationship between rules and guidance
   • Resolving conflicts between Core Duties
     • Primacy of the duty to the court
     • Worked conflict scenarios
2. 2

   The Cab-Rank Rule and Acceptance of Instructions

   3 topics

   • Scope and rationale of the cab-rank rule
     • Obligation to accept instructions in your field at a proper fee
     • Equality of access to representation
   • Exceptions and permitted refusals
     • Lack of competence or experience
     • Conflict of interest and professional embarrassment
     • Inadequate time, capacity or fee terms
   • Returning instructions and the duty not to abandon
3. 3

   Conflicts, Confidentiality and Privilege

   3 topics

   • Identifying conflicts of interest
     • Conflicts between clients and own interest
     • Former client confidential information
   • Confidentiality obligations
     • Duty of confidentiality vs disclosure to the court
     • Information barriers and chambers structures
   • Legal professional privilege in practice
     • Legal advice privilege and litigation privilege
     • Waiver and inadvertent disclosure
4. 4

   Duties to the Court and Misleading the Court

   3 topics

   • The overriding duty to the court
     • Not misleading or attempting to mislead the court
     • Correcting errors and false statements
   • Handling adverse authority and disclosure
     • Duty to draw the court's attention to relevant authorities
     • Procedural irregularities
   • Dealing with a client who has given false evidence
     • Confession of guilt scenarios in criminal practice
     • Withdrawal where continued acting would mislead
5. 5

   Ethical Decision-Making and Regulatory Enforcement

   3 topics

   • Reporting obligations and self-reporting
     • Duty to report serious misconduct
     • Non-victimisation and whistleblowing
   • Disciplinary processes
     • BSB enforcement and the Bar Tribunals and Adjudication Service
     • Sanctions and findings
   • Equality, diversity and anti-discrimination duties
     • Equality Act 2010 obligations in chambers
     • Fair allocation of unassigned work and Earl-marshalling

Professional Ethics and Conduct in Practice flashcards for Pupillage (Bar Vocational Stage)

24 of 49 cards from the Professional Ethics and Conduct in Practice deck — real questions with worked answers.

1. What are the ten Core Duties (CDs) of the BSB Handbook?

   CD1: duty to the court in the administration of justice. CD2: act in the best interests of each client. CD3: act with honesty and integrity. CD4: maintain independence. CD5: not behave in a way likely to diminish trust and public confidence in the profession. CD6: keep client affairs confidential. CD7: provide a competent standard of work and service. CD8: not discriminate unlawfully. CD9: be open and co-operative with regulators. CD10: take reasonable steps to manage your practice/carry out your role competently.

2. Which Core Duty takes precedence over all others, and what does the BSB Handbook say about this?

   CD1 (duty to the court in the administration of justice) is the overriding duty. The Handbook states that CD1 overrides any other Core Duty, including the duty to act in the best interests of the client (CD2), where the two conflict.

3. In the BSB Handbook hierarchy, where does CD2 (best interests of client) rank relative to CD3 and CD5?

   CD2 (best interests of each client) takes precedence over CDs 3 to 10, but it does NOT override CD1. So the order of precedence for conflict is CD1 first, then CD2, then the remaining duties balanced against each other.

4. What are the main Parts/components of the BSB Handbook structure?

   Part 1: Introduction (application). Part 2: The Code of Conduct (Core Duties, outcomes, rules and guidance). Part 3: Scope of Practice, Authorisation and Licensing Rules. Part 4: Qualification Rules. Part 5: Enforcement Regulations. Part 6: Definitions. There are also Annexes/transitional provisions.

5. Within the BSB Code of Conduct, what is the relationship between Core Duties, Outcomes, Rules and Guidance?

   Core Duties are the fundamental overarching principles. Outcomes describe what the duties are designed to achieve. Rules (rC...) are mandatory obligations supplementing the Core Duties. Guidance (gC...) explains and illustrates how to comply but is not itself mandatory. The Core Duties and Rules are mandatory; breach can lead to disciplinary action.

6. What is the prefix convention used to cite provisions in the BSB Code of Conduct?

   CD = Core Duty; oC = Outcome; rC = Rule (conduct); gC = Guidance. For example, rC25 is a conduct rule and gC5 is a piece of guidance.

7. State the cab-rank rule and where it is found in the BSB Handbook.

   The cab-rank rule (rC29) requires a self-employed barrister (and BSB-authorised body) to accept any instructions in a field in which they profess to practise, irrespective of the identity of the client, the nature of the case, and the client's beliefs or conduct, provided certain conditions are met (e.g. appropriate area of practice, proper fee offered, available capacity).

8. What is the rationale/justification for the cab-rank rule?

   It ensures access to justice and legal representation for all, including unpopular clients and causes; it preserves the barrister's independence and avoids the barrister being identified with the client's views or conduct; and it prevents discrimination in the provision of advocacy services.

9. List the key conditions in rC30 under which the cab-rank rule applies.

   The rule applies where: (a) the instructions are in an area of law in which you practise/profess to practise; (b) you are being instructed by a professional client (or other permitted intermediary); (c) the fee is proper/reasonable and offered; (d) you have appropriate experience and capacity (time available); and (e) you are not already committed/conflicted. If these are not met the cab-rank rule does not bite.

10. Give examples of circumstances where a barrister is NOT obliged to accept instructions under the cab-rank rule (rC21).

    You must refuse/are not obliged to accept where: you lack the experience/competence to handle the matter; there would be a conflict of interest; you have confidential information of another client relevant to the matter; you cannot do the work in the required timescale; accepting would require you to break the law or breach a Core Duty; or the instructions seek to limit your ordinary authority improperly.

11. Distinguish the cab-rank rule (rC29) from the situations where you MUST refuse instructions (rC21).

    The cab-rank rule compels acceptance of instructions you would rather decline (e.g. an unpopular client). rC21 lists mandatory refusal grounds — situations where you must NOT accept, e.g. conflict of interest, lack of competence, insufficient time, or where accepting would breach a Core Duty. rC21 effectively carves out exceptions to the cab-rank obligation.

12. Does the cab-rank rule apply to employed barristers and to direct access (public access) work?

    No. The cab-rank rule applies only to self-employed barristers (and BSB-authorised bodies) instructed by a professional client in the normal way. It does not apply to employed barristers, nor (generally) to public/direct access instructions from lay clients.

13. Once a barrister has accepted instructions, what is the general rule about returning them?

    Under rC25, a barrister must not cease to act or return instructions without good reason and (where appropriate) reasonable notice. The duty is not to abandon the client; you must avoid leaving the client without adequate time to find alternative representation, especially close to a hearing.

14. When MUST a barrister cease to act / return instructions (mandatory returns under rC25)?

    You must return instructions if: continuing would breach a Core Duty (e.g. you discover a conflict of interest or that you lack competence); the client refuses to authorise disclosure you are duty-bound to make to the court; you become professionally embarrassed; or you are instructed to do something dishonest/improper and the client will not be dissuaded.

15. What is meant by a barrister being 'professionally embarrassed'?

    Professional embarrassment is a recognised ground for declining or returning instructions where the barrister cannot properly continue — e.g. lack of sufficient experience/competence, insufficient time to prepare, a conflict of interest, possession of relevant confidential information about another client, or a real risk of being a witness in the case.

16. What are the two main categories of conflict of interest a barrister must identify?

    (1) Own-interest conflict — a conflict between the barrister's own personal interest and the client's interest. (2) Client conflict — a conflict between the interests of two or more current (or current and former) clients. Both engage CD2 and require refusal or cessation of acting.

17. Under rC21, what must a barrister do if there is a conflict of interest between two existing clients?

    The barrister must not act for both where there is a conflict of interest (or a real risk of one) between them, unless all affected clients give informed consent in writing and acting remains in each client's best interests. If consent cannot properly cure the conflict, the barrister must decline or cease to act for one or both.

18. State the scope of CD6, the duty of confidentiality.

    CD6 requires you to preserve the confidentiality of each client's affairs. You must not disclose (or misuse) information confidential to a client without their consent, and this duty continues after the retainer ends and even after the client's death. It applies regardless of the source of the information.

19. How does the duty of confidentiality (CD6) interact with the duty to the court (CD1)?

    CD1 does not override CD6: a barrister must never disclose a client's confidential information to the court without consent. Where you cannot make a disclosure the court requires because of confidentiality/privilege, the proper course is to cease to act (return the instructions) rather than to breach confidence.

20. Give the recognised exceptions where disclosure of confidential information is permitted or required.

    Disclosure may be permitted/required where: the client gives informed consent; disclosure is required by law or court order; it is necessary to prevent serious crime or risk to life/safety; it is needed to defend yourself against an allegation (e.g. in disciplinary or negligence proceedings); or it is required under anti-money-laundering/proceeds-of-crime reporting obligations.

21. Distinguish the duty of confidentiality from legal professional privilege.

    Confidentiality is a broad professional/ethical (and contractual) duty owed to the client covering all client affairs. Legal professional privilege (LPP) is a narrower substantive legal right belonging to the client that protects certain communications from compelled disclosure (e.g. to a court or opponent). All privileged material is confidential, but not all confidential material is privileged.

22. What are the two limbs of legal professional privilege?

    (1) Legal advice privilege — confidential communications between lawyer and client made for the purpose of giving or receiving legal advice (no litigation need be contemplated). (2) Litigation privilege — confidential communications between lawyer/client and third parties where the dominant purpose is actual or reasonably contemplated litigation.

23. What is the 'dominant purpose' test in the context of litigation privilege?

    For litigation privilege to apply, the communication (e.g. with a third party such as an expert or witness) must have been created for the dominant (main) purpose of conducting, obtaining advice for, or gathering evidence for actual or reasonably contemplated litigation. If litigation was merely one of several equal purposes, privilege is not established.

24. To whom does legal professional privilege belong, and can a barrister waive it?

    Privilege belongs to the client, not the lawyer. Only the client can waive it. A barrister cannot waive the client's privilege and must assert it on the client's behalf; the barrister also cannot disclose privileged material without the client's authority.

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