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

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.

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.

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.

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.

Does the iniquity/crime-fraud exception affect privilege?

Yes. Communications made in furtherance of a crime or fraud (the 'iniquity exception' / crime-fraud exception) are not protected by legal professional privilege, even if a lawyer is innocently involved. Such communications never attract privilege in the first place.

State CD1 and explain what the 'overriding duty to the court' means in practice.

CD1 is the duty to the court in the administration of justice. In practice it means a barrister must not mislead the court, must assist the court in doing justice, must not abuse the court process, must comply with court orders, and must put these obligations above the client's wishes where they conflict (subject to not breaching confidentiality).

What does rC3 require a barrister to do in relation to not misleading the court?

rC3 requires that you must not knowingly or recklessly mislead or attempt to mislead the court; must not draft documents containing assertions you do not consider properly arguable or allegations of fraud without sufficient material/instructions; must not make submissions/representations you know to be untrue; and must correct any misleading statement made to the court as soon as practicable (with the client's consent).

What is a barrister's duty regarding adverse authority (law that is against their client)?

A barrister must draw to the court's attention any relevant decision, legislative provision or procedural irregularity of which they are aware and which is adverse to the client's case (rC3 / duty of candour on points of law), even if the opponent has not cited it. This duty of candour applies to the law; it does not require disclosing adverse facts/evidence in adversarial proceedings.

Compare a barrister's duty to disclose adverse LAW versus adverse FACTS in ordinary adversarial litigation.

Adverse law: there is a positive duty to bring relevant adverse legal authority and procedural irregularities to the court's attention, even if the other side misses them. Adverse facts/evidence: in normal adversarial proceedings there is NO duty to volunteer facts or evidence harmful to your client (subject to not actively misleading the court). The asymmetry reflects the court's reliance on counsel for the law.

What special disclosure duties arise in ex parte (without notice) applications?

On a without-notice application the applicant's barrister owes a heightened duty of full and frank disclosure: they must disclose all material facts, including those adverse to their own client's case, because the other side is absent and cannot do so. Failure can lead to the order being set aside.

What must a barrister do if, during a case, they discover the client has put forward FALSE evidence or a false statement to the court?

You must seek the client's consent to correct the position with the court. If the client refuses to allow the correction, you cannot continue to act in a way that misleads the court: you must cease to act / withdraw, but you must NOT disclose the client's confidential information (the reason) to the court without consent.

If a client confesses guilt to their barrister but insists on pleading not guilty, can the barrister continue to act?

Yes, but only within strict limits. The barrister may continue and put the prosecution to proof (test the evidence, e.g. cross-examine on reliability) but must NOT advance a positive case inconsistent with the confession — e.g. cannot call evidence or assert the client's innocence, set up an alibi, or suggest someone else committed the offence. Doing so would mislead the court (CD1).

Distinguish 'putting the prosecution to proof' from 'advancing a positive case' where a client has admitted guilt.

Putting the prosecution to proof = requiring the Crown to prove every element, testing the strength/reliability of its evidence, and making submissions of no case — all permissible. Advancing a positive case = asserting an affirmative factual account inconsistent with the admission (alibi, blaming another, asserting innocence) — impermissible because it knowingly misleads the court.

What is a barrister's obligation if a client wishes to give evidence the barrister knows to be untrue?

The barrister must advise the client not to give false evidence and warn of the consequences. If the client insists on giving evidence the barrister knows is false, the barrister must withdraw rather than knowingly assist in misleading the court; the barrister cannot lead or rely on evidence known to be untrue.

What is the general duty to report serious misconduct of others under the BSB Handbook (rC66)?

rC66 requires you to report to the BSB promptly if you have reasonable grounds to believe there has been serious misconduct by another barrister (or regulated person). This is part of being open and co-operative with your regulator (CD9). Certain confidential/privileged information is exempt from the reporting requirement.

What is the self-reporting obligation under the BSB Handbook (rC65)?

Under rC65 you must report your own serious misconduct, and report promptly to the BSB certain events: e.g. if you are charged with or convicted of a criminal offence (other than minor road traffic matters), become bankrupt or subject to insolvency proceedings, are disqualified as a company director, or are subject to disciplinary action by another regulator.

What is the time requirement for reports to the BSB, and what underpins these reporting duties?

Reports of reportable events and serious misconduct must be made 'promptly'. These obligations flow from CD9 (be open and co-operative with your regulators) and CD5 (maintain public trust). Failing to report, or being dishonest with the regulator, is itself serious misconduct.

Outline the BSB's disciplinary/enforcement process from complaint to tribunal.

A concern/complaint is assessed by the BSB; it may be investigated. The BSB can: take no action, issue administrative sanctions/warnings, agree a determination by consent, or refer the matter to a Disciplinary Tribunal. The Bar Tribunals & Adjudication Service (BTAS) convenes the Disciplinary Tribunal, which hears charges and can impose sanctions. Appeals lie to the High Court.

What sanctions can a BSB Disciplinary Tribunal impose?

Sanctions range from: advice/reprimand, a fine, conditions on practice, suspension from practice for a period, to disbarment (the most serious — removal from the profession). The Tribunal follows the BTAS Sanctions Guidance to ensure proportionality and consistency.

What standard of proof is applied in BSB disciplinary proceedings?

The civil standard of proof — the balance of probabilities — applies in BSB disciplinary proceedings before the Disciplinary Tribunal (this replaced the former criminal standard).

State CD8 and the equality/anti-discrimination duties on barristers.

CD8 requires that you must not discriminate unlawfully against any person. Supporting rules (rC12) require you not to discriminate against, harass, victimise or bully any person, and to act in accordance with the Equality Act 2010. Barristers and chambers must take positive steps to promote equality and diversity.

Which protected characteristics under the Equality Act 2010 must barristers not discriminate on?

Age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation — the nine protected characteristics under the Equality Act 2010.

How does the cab-rank rule reinforce the anti-discrimination duty (CD8)?

The cab-rank rule prohibits a self-employed barrister from refusing instructions on the basis of the client's identity, characteristics, beliefs or conduct. It thus operationalises CD8 by preventing discrimination in the acceptance of advocacy work and guaranteeing representation regardless of the client's protected characteristics or popularity.

What specific equality and diversity obligations apply to chambers/BSB-authorised bodies?

They must have an equality and diversity policy, appoint a trained Equality and Diversity Officer, collect and publish diversity data, take steps to ensure fair access to work and fair allocation of work, provide reasonable adjustments for disabled people, and have a parental leave/flexible working and anti-harassment policy.

State CD3 (honesty and integrity) and give examples of breaches.

CD3 requires you to act with honesty and integrity. Examples of breaches: misleading clients, the court or third parties; misusing client money; making false statements; backdating documents; or conduct that, though not dishonest, lacks integrity such as taking unfair advantage. CD3 applies to professional and, in some respects, personal life.

What is the scope of CD5 and why does it extend to a barrister's private life?

CD5 prohibits behaviour likely to diminish the trust and confidence the public places in the individual barrister or the profession. It can extend to conduct outside professional practice (e.g. criminal convictions, dishonesty, serious social-media misconduct) because such behaviour can undermine public confidence in the integrity of the Bar.

How should a barrister resolve a conflict between CD2 (best interests of client) and CD3 (honesty and integrity)?

CD3 prevails over CD2. A barrister can never act dishonestly or without integrity even to advance the client's best interests — for example, you cannot mislead the court or a third party, or suppress the truth dishonestly, simply because it would benefit the client. CD2 is subject to CDs 3 to 10 in this respect.

What is the proper course where complying with the duty to the court would require disclosing privileged/confidential client information the client will not allow you to reveal?

You cannot breach confidentiality/privilege (CD6) and you cannot mislead the court (CD1). The resolution is to withdraw / cease to act, giving the client reasonable opportunity to instruct someone else, without disclosing to the court the confidential reason for withdrawing.

Summarise the priority order a barrister applies when Core Duties conflict.

1) CD1 (duty to the court) overrides all other Core Duties where they conflict. 2) CD2 (best interests of client) takes precedence over CDs 3-10. 3) However, CD2 can never justify breaching CD1, CD3 (honesty/integrity) or CD6 (confidentiality). 4) Where conflicts cannot be reconciled, the barrister generally must cease to act rather than breach a duty.