I don’t put myself forward as an expert on ethics, or pretend to have all the answers, but I do take in interest in ethics and regulation (and the various absurdities that can be thrown up by our Code of Conduct – and will no doubt continue after the changes) and I thought that it would be interesting to share some ethical/regulatory conundrums with you.
This is from a handout from a CPD lecture I did that was mainly for our pupils and junior tenants. Despite the fact that it’s accredited by the BSB for CPD, you won’t be able to get any for reading it because of the various hoops that I would have to jump through to get online accreditation (as well as having to pay money).
It’s slightly out of date (haven’t updated it for a good few months) but the principles are still the same. I’m putting it out there for interest for practicing lawyers (and law students). We did an in-house group seminar in Chambers with it, and there was certainly disagreement on some of the points. Some are straightforward (and you really should know), others less so (and don’t always have a definitive answer).
Obviously, if you want to steal these to use in their own seminar with, feel free to. I’m happy to supply my sample answers, but caveat emptor etc.
I’ve got my answers (which were approved, or at least not disapproved, by the BSB) if anyone’s looking for any answers …
A few ethics questions. In all cases, consider the answer as it applies a) under the Code of Conduct and b) under the general law. In relation to the Code of Conduct, consider whether the matter in issue is subject to the cab rank rule (ie, whether the answer is that you can do something, but are not obliged to).
1. You are a 2nd six pupil and are asked to go and cover a two week Attempted Murder trial at Snaresbrook that is due to start today. The tenant who is instructed is ill and is happy for you to go as the client is ‘definitely going to plead guilty’ following a conference last Friday. He will do a deal with you over how the money is split.
(a) Should you go?
(b) Does it make a difference if you have a signed endorsement that the client will plead guilty?
(c) What about if the tenant says there is a signed endorsement and that the Judge knows and has agreed to adjourn it for sentence?
(d) The tenants suggest he pays you £200 for that, is that ok?
2. At a trial in Redbridge Magistrates’ Court, your client does not show up. Can you carry on representing him?
(a) Can you carry on representing him?
(b) What if the solicitors have withdrawn?
(c) Does it make a difference if you have a signed proof?
(d) Does it make a difference if you dealt with him at the first appearance and know what his instructions are?
3. You represent a client at a first appearance at West London Magistrates’ Court. He tells you that he has a warrant outstanding to Kingston Crown Court where he will be taken after court today. You apply for, and are granted, ‘technical bail’ on this basis. It then transpires that what he told you was not correct.
(a) Should you tell the court before he is released?
(b) Does it make a difference if he is actually on a warrant, but the cells will release him anyway as ‘they’ve lost the paperwork’?
4. At a trial your client turns up blind drunk.
(a) How do you deal with this?
(b) Are you obliged to tell the court the position?
5. A solicitors firm in Birmingham that chambers does a small amount of work for asks you to lodge a JR claim form for them as the deadline is today. They will refund the cost of it to you.
(a) Is this ok?
(b) What if they have already paid the money into the court and so you just need to hand the form in and have it stamped?
(c) What if you ask a clerk to do it?
(d) What if the client is in London and the solicitors want you to take him over to the RCJ and show him how it is done?
(e) What if the delay is due to a member of chambers not having done the grounds when he was supposed to?
6. You are at court and a solicitor needs to get an affidavit sworn. She says “you’re a commissioner for oaths, can you just witness this”.
(a) What do you do?
(b) If she offers you £5, does that make a difference?
(c) Does it make a difference if you are in the County Court and she is a trainee solicitor?
(d) Does it make a difference if you are involved in the case?
7. If a prosecutor tells you something ‘in confidence, counsel to counsel’;
(a) Under what circumstances can you tell your client?
(b) Does it make a difference if you have agreed that it is in confidence?
8. At a trial there are three defence witnesses that the solicitors have not proofed.
(a) Can you proof them yourself?
(b) What if it is a family case and they need to do a witness statement to be given to the court. Can you do this?
9. You are sent off to defend a trial without any papers. The complainant is an old friend from university.
(a) Can you carry on?
(b) What if it is not the complainant that is an old friend, but the OIC?
(c) What if it is someone off your course that you recognise, but you don’t know his name?
(d) If you decide to carry on, what do you do if the Prosecutor or the Lay Bench/DJ objects and orders you to withdraw?
10. You are instructed in a case. When you arrive at court the client says “I’m glad it’s you, I wanted a white barrister” (substitute as the case may be).
(a) Is there a problem with you representing him?
(b) What if you are told by the solicitor that the client wants a white barrister, which is why you are instructed?
11. Towards the end of your 1st six, you are booked in for a trial at Redbridge Magistrates’ court on 10th April. The solicitor (who you know well from your first six) asks if you can have a con in Chambers on 30th March on this case.
(a) Can you do this?
(b) What if the conference is pro bono?
(c) What if it is an immigration case?
(d) Does it make a difference if the solicitor will be present?
12. At a first appearance your client tells you that you shouldn’t tell the court anything about his case as he is ‘fucked off with the police and wants to go home’. After he pleads not guilty, the court directs you to fill in the case management form.
What do you do?
13. A former member of chambers who emigrated to Australia ten years ago wants you to write an advice on English law for his new neighbour.
(a) Can you?
(b) Does it matter whether or not the former member or his neighbour is/is not a lawyer?
(c) Does it matter if you are qualified to undertake public access work?
14. Your brilliant abuse argument at Bexley Magistrates’ Court gets a shoplifting trial stayed as an abuse of process. The solicitor wants to know if she can use your skeleton (with names changed) in another, similar, case that she is doing.
(a) Can she?
(b) Can she circulate it to other people in her firm/local area? Does it make a difference if it has your name on it or not?
(c) Does it matter if the client has given permission for this or not?
(d) If a reporter from the Bexley Gazette asks for a copy whilst at court, can you refuse? Can you give it to him if you want to?
15. A solicitor rings on Friday afternoon. One of his regulars is in the police station waiting to see if he will be charged and remanded. He wants to book you tomorrow to represent him, if he is remanded.
(a) Can he do this?
(b) If he offers to pay you £50 to keep yourself out of court ‘just in case’ is this ok?
(c) If you had booked the Saturday off, does that make a difference?
(d) What if he says “I’m impressed by you and I get lots of Saturday work, so I want to book you now for every Saturday, for whichever court I’ve got a client in. I’ll pay you £60 a week for this whether or not you go out”. Is that ok?
16. You are instructed to do a sentence at Enfield Magistrates’ Court. Whilst you are waiting, a solicitor asks if you can do a variation of street bail for him as he needs to get off and whether you can do this for £25 ‘as you are here anyway’.
What do you do?
17. A solicitor approaches you about Judicially Reviewing the CPS. She is a sole practitioner and wants you to draft the pre-action protocol letter.
(a) Can you?
(b) What if she wants you to sign and send it on their behalf?
18. The same solicitor wants you to write to the CPS concerning a case you are instructed on to chase them over disclosure.
(a) Can you?
(b) Does it make a difference if they want you to send a s8 application with the letter?
(c) In either case, does it matter if you are writing on Chambers notepaper or not?
19. You defend someone at court who is convicted. He wants to do the appeal himself and asks you for a copy of your papers (with any annotations), your notebook from the trial and any preparation done for the trial.
(a) Are you obliged to hand these over?
(b) Does it make a difference if it is the solicitor who asks you?
20. You are instructed on a private first appearance at COW with an agreed fee of £100. The client turns up with £100 in cash and gives it to you.
(a) Can you keep it?
(b) Whether you keep it or not, should you tell anyone about this?
(c) What if he gives you £150?
(d) Does it make a difference if he is up for drug dealing and you suspect that this is the proceeds of crime?
(e) Does it make a difference if he says “There you go, you’re lucky. I thought that I had nothing in my account, but the cheque from some cocaine I sold has just cleared, so I got some cash out this morning”?
Discussion Question on Regulation
You are approached by a solicitor who is annoyed as a Mr Turner (who he knows is not legally qualified and doesn’t believe has any qualifications at all) has rented an office next door to him and opened up what he calls “Camden Legal Advice and Representation Service” (CLARS). Your solicitor gives you a copy of Mr Turner’s leaflets (below) and asks you to advise whether Mr Turner has done anything wrong under the criminal, civil or regulatory law. Has he?
Camden Legal Advice and Representation Service
John Turner is a lawyer, advocate and expert legal adviser. He can help with your legal problems in the following areas :
For all other matters, ask within.