Bar Training Course (BTC) Professional Ethics and the Regulation of Barristers Flashcards

24 sample cards from the Professional Ethics and the Regulation of Barristers deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. Which prevails where the duty to act in a client's best interests (CD2) conflicts with the duty of confidentiality owed to another client (CD6)?

   The duty of confidentiality (CD6) takes precedence. A barrister must not disclose one client's confidential information to benefit another. If full and frank disclosure to a client cannot be made because of confidentiality owed elsewhere, the barrister must decline or cease to act for that client.

2. State Core Duty 7 (competence) and three things it requires of a barrister.

   CD7: You must provide a competent standard of work and service to each client. It requires: (1) only accepting work the barrister is competent and has time to handle; (2) keeping professional knowledge and skills up to date (CPD); and (3) being supervised/seeking help where appropriate. A barrister must not undertake tasks beyond their competence.

3. State Core Duty 8 and identify the protected characteristics under the Equality Act 2010.

   CD8: You must not discriminate unlawfully against any person. The nine protected characteristics under the Equality Act 2010 are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

4. Distinguish direct discrimination, indirect discrimination, harassment and victimisation under equality law as relevant to barristers.

   Direct: treating someone less favourably because of a protected characteristic. Indirect: applying a provision, criterion or practice that disadvantages those with a protected characteristic and is not a proportionate means of achieving a legitimate aim. Harassment: unwanted conduct related to a protected characteristic that violates dignity or creates a hostile/degrading environment. Victimisation: treating someone detrimentally because they did (or may do) a protected act, e.g. bringing a discrimination complaint.

5. What is the general rule on a self-employed barrister holding client money?

   Self-employed barristers are prohibited from holding client money. A barrister must not handle client money (other than a fixed fee paid in advance for work to be done) and must not have control over client funds. Money received for fees can be retained once earned; money for disbursements or otherwise belonging to the client cannot be held.

6. What is the rationale for the prohibition on barristers holding client money?

   It reduces the risk of misappropriation/fraud, removes the need for the costly client-account regulation and compensation arrangements that solicitors require, and reflects the referral nature of the Bar where solicitors/professional clients handle client funds. It protects the public and maintains confidence in the profession.

7. Define a 'referral fee' and state the BSB position on them.

   A referral fee is a payment or other consideration given in return for the referral of professional instructions/clients. Barristers must not pay or receive referral fees. They are prohibited because they can compromise independence, the duty to act in the client's best interests, and public confidence, and may distort the client's choice of representation.

8. Why are improper financial arrangements (such as fee-sharing or inducements) restricted for barristers?

   Because they risk undermining the barrister's independence (CD4) and duty to act in the client's best interests (CD2): a financial incentive to a referrer could influence advice, the choice of barrister, or the conduct of the case for reasons unconnected to the client's interests, and would diminish public trust (CD5).

9. A criminal client privately confesses guilt to their barrister but wishes to plead not guilty. May the barrister continue to act?

   Yes, the barrister may continue to represent the client and put the prosecution to proof. The confession limits what the defence can do but does not require withdrawal.

10. After a client's confession of guilt, what may and may not the barrister do at trial?

    The barrister MAY: test the prosecution evidence, make submissions that the prosecution has not proved its case, and advance a positive 'not guilty' plea on the basis the Crown must prove guilt. The barrister MUST NOT: assert the client's innocence as a positive case, call or rely on evidence the barrister knows to be false, set up an affirmative case inconsistent with the confession, or suggest someone else committed the offence. They cannot mislead the court.

11. If a client who has confessed insists on giving evidence asserting their innocence, what must the barrister do?

    The barrister cannot present perjured evidence or a positive false case. If the client insists on lying to the court, the barrister must advise against it; if the client persists, the barrister must cease to act / withdraw, because continuing would require knowingly misleading the court in breach of CD1. The barrister must do so without disclosing the confidential reason.

12. List the principal circumstances in which a barrister MUST cease to act (mandatory withdrawal).

    A barrister must withdraw where: (1) continuing would require breaching a Core Duty (e.g. misleading the court); (2) they become aware they are not competent to handle the matter; (3) they are instructed/required to do something inconsistent with their duty to the court; (4) there is a conflict of interest that cannot be managed; (5) the client refuses to authorise disclosure the barrister is duty-bound to make to the court; or (6) their professional independence is compromised.

13. List circumstances in which a barrister MAY (but is not obliged to) withdraw from a case.

    A barrister may withdraw where, for example: the professional client consents; there is a serious breakdown in the relationship/loss of confidence; fees remain unpaid after reasonable notice (where permitted); the client fails to give adequate instructions; or another good reason exists — provided withdrawal can be done without jeopardising the client's interests and there is enough time for the client to instruct another lawyer (or with the court's leave in proceedings).

14. What constraints apply to the timing and manner of a barrister's withdrawal from a case?

    A barrister must not withdraw in a way that prejudices the client. There must be adequate time for the client to find alternative representation; in litigation, withdrawal close to or during a hearing may require the court's consent. On returning instructions, the barrister must explain (within the limits of confidentiality), promptly return papers, and not disclose the confidential reason for withdrawal to the court or others.

15. What is the barrister's duty where they learn that the client intends to mislead the court?

    The barrister must not knowingly or recklessly mislead or attempt to mislead the court, and must not be complicit in the client doing so. They must advise the client that they cannot be a party to misleading the court. If the client insists on putting forward false evidence or a false case, the barrister must refuse and, if the client persists, withdraw — without revealing privileged information.

16. Distinguish between actively misleading the court and failing to correct a court's own error of fact in adversarial proceedings.

    A barrister must not make positive false statements or adduce evidence they know is false. However, in an adversarial case a barrister is generally NOT obliged to correct the court's or opponent's mistaken understanding of the FACTS, provided the barrister has not caused or contributed to the error. The barrister MUST correct any misleading impression they themselves created and must always be candid on the LAW.

17. If a barrister discovers during a hearing that a document they relied on is forged or evidence is false, what must they do?

    The barrister must not continue to rely on it. They must seek the client's authority to disclose/correct the position; if the client refuses, the barrister must cease to act because continuing would mislead the court (CD1). The barrister cannot reveal the privileged information without consent, but must withdraw rather than perpetuate the deception.

18. What is a barrister's duty to report serious misconduct of another person under the BSB Handbook?

    A barrister who has reasonable grounds to believe that another barrister or regulated person has committed serious misconduct must report it to the BSB, subject to overriding duties of confidentiality and legal professional privilege. This duty to report serious misconduct supports the duty to be open and co-operative with regulators (CD9).

19. What is the duty to self-report, and give examples of reportable events.

    Barristers must promptly report certain matters about themselves to the BSB. Reportable events include: being charged with or convicted of a criminal offence (other than minor motoring); bankruptcy or insolvency events; disqualification as a company director; findings of professional misconduct or disciplinary action by another regulator; and other matters the Handbook specifies. The aim is transparency and protection of the public (CD9).

20. What is the threshold qualifier 'serious misconduct' meant to capture, and why is the reporting duty limited to it?

    'Serious misconduct' covers conduct such as dishonesty, discrimination, abuse of professional position, criminal conduct, or breaches that bring the profession into disrepute — not trivial or technical breaches. Limiting the mandatory reporting duty to serious matters avoids over-reporting, respects confidentiality/privilege, and focuses regulatory resources on conduct genuinely threatening the public and trust in the profession.

21. Outline the stages of the BSB disciplinary/enforcement process from complaint to sanction.

    (1) A concern/complaint or report reaches the BSB; (2) assessment and investigation by the BSB; (3) a decision on whether there is a case to answer; (4) lower-level matters may be dealt with by administrative/determination by consent or an Independent Decision-Making Body; (5) serious cases are referred to a Disciplinary Tribunal convened by the Bar Tribunals and Adjudication Service (BTAS); (6) the tribunal determines the charge and imposes sanctions; (7) a right of appeal exists (e.g. to the High Court).

22. What range of sanctions can a Disciplinary Tribunal impose on a barrister, from least to most severe?

    From least to most severe: advice/reprimand or warning; imposition of conditions on practice; a fine; suspension from practice for a fixed period; and disbarment (removal from the profession). Tribunals follow the BTAS Sanctions Guidance, which weighs the seriousness of the misconduct, culpability, harm, and aggravating/mitigating factors.

23. Which body hears barrister disciplinary cases, and what is the role of the BSB Sanctions/BTAS Guidance?

    Disciplinary charges are heard by Disciplinary Tribunals administered by the Bar Tribunals and Adjudication Service (BTAS), independent of the BSB which acts as prosecutor. The BTAS Sanctions Guidance provides a structured framework for determining proportionate sanctions, promoting consistency by reference to misconduct categories, indicative sanction ranges, and aggravating/mitigating factors.

24. How does the duty to maintain public trust (CD5) extend to a barrister's conduct outside professional practice?

    CD5 can apply to private/personal conduct where it is so serious that it would diminish public trust and confidence in the barrister or the profession — for example, dishonesty, serious criminal offences, or seriously offensive behaviour. Barristers are held to high standards even outside their professional work because their integrity underpins confidence in the administration of justice.

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