are talking to will not be obliged by the Handbook to inform the BSB, although the caller may be under an obligation to
Handbook Q&A What is happening? From January 2014 the Bar should refer to a new Handbook for rules and guidance on their conduct as barristers. The revised Code now forms part II of the new BSB ‘Handbook’, which brings together all the BSB’s regulations and guidance into one publication.
Why is it being replaced? The current Code of Conduct was created almost a decade ago. While many rule changes have been implemented since then, the basic framework underpinning it has remained the same. When the BSB was formed in 2006, it started the process of reviewing the regulation of barristers to ascertain the extent to which the existing rules protected the public, and what needed to change. As the Legal Services Act 2007 created a new regulatory structure for legal services – and allowed, for the first time, different types of lawyer and non-lawyer to form businesses together – this provided an additional prompt for reviewing the regulations. Following substantial revision and a number of consultations – which can be accessed here – a new Code of Conduct is now ready to be launched in the New Year.
What will be different about the new Handbook? The new Handbook’s approach is less prescriptive, with more focus and guidance on what the outcome of a rule should be, rather than attempting to define how a barrister should act in every situation. Superfluous rules have been stripped away and others modernised, so it should be easier to navigate for both barristers and members of the public.
What does the new Handbook consist of? 10 ‘Core Duties’: the core elements of professional conduct that apply to all barristers. Outcomes: descriptive, rationale for rules and aid understanding of rules and guidance. These are not mandatory, but will be taken into account when considering breaches of the rules. Rules: supplementing core duties where specific rules are necessary. Guidance: to assist with the interpretation of rules and examples of expected behaviour.
What are the biggest changes? While the whole approach underpinning the new Handbook will be different from that of the current Code of Conduct, there are also some big practical changes, too, such as: Litigation: self-employed barristers will be able to apply for an extension to their practising certificate to conduct litigation. This will relieve clients approaching public access barristers of the task of having to act as a self-representing litigant and conducting the administrative tasks themselves or going through a solicitor. Unregistered barristers: the Core Duties will apply to all barristers, including unregistered barristers when they are providing legal services. When not providing legal services, only the core duties relating to: (CD4) not behaving in a way which is likely to diminish the trust and confidence of the public; and (CD9) co-operation with regulators apply. Reporting serious misconduct by others: A new requirement to report serious misconduct to the BSB. Barristers will be required to self-report and report others in relation to “serious misconduct” only. Associations with others: the prohibition on barristers sharing premises with people other than other barristers has been abolished, as has the prohibition on associations with others. Safeguards remain, however, to ensure that clients are not misled.
Co-operating with the regulator: this will be enshrined in the Core Duties. All chambers will be expected to appoint a member responsible for liaising with the BSB, and who will help streamline communication and the flow of information between the chambers and the regulator. This replaces the current duty on Heads of Chambers. However, all barristers are under a duty to ensure – as far as reasonable – that their chambers are administered competently. Changes to international practising rules: The definition of ‘international work’ will be replaced with three new definitions of “foreign work”, “foreign clients” and “foreign lawyers.” The new definitions will allow the Handbook to be applied to foreign work in a more consistent and logical way than is currently achieved by the existing Code. The public access rules will now apply to foreign work.
I’m a barrister who gives advice via the Bar Council ethical helpline. Will I still be under a duty to report the misconduct of those I speak with? No. The duty to report will not apply to barristers consulted via the Bar Council ethical helpline – should someone call the helpline and disclose non-compliance the person they are talking to will not be obliged by the Handbook to inform the BSB, although the caller may be under an obligation to self-report.
What are the benefits for barristers? For barristers, the Handbook will allow them new freedoms and flexibility in the way they manage their practice or business. This will leave them better placed to adapt to a rapidly changing legal services market. The changes to premises sharing and forming associations will allow self-employed barristers to share risk more widely. The new Handbook does not seek to dictate how a barrister should act in specific situations unless there is regulatory need to do so, allowing greater flexibility where possible.
And what about for clients? For clients, the new Handbook will be easier to navigate. Clients can readily see what is expected from barristers in relation to their conduct: in court; in their practice; towards the client; towards the regulator; towards others. Perhaps one of the biggest changes for clients are for those consumers approaching public access barristers. Previously, should a public access case go to court, the client would have to act as a self-represented litigant and conduct certain administrative tasks themselves or go through a solicitor. Under the rules set out in the new Handbook, the client’s barrister will now be able to undertake litigation themselves – provided they have been authorised to do so. Lay clients will therefore have the option of purchasing support with particular aspects of their case, should they so wish, in addition to accessing a one stop shop for litigation and advocacy.
What are the ‘Core Duties’? The Core Duties are the core elements of professional conduct that apply to all barristers. As set out in the new Handbook, these are: o You must observe your duty to the court in the administration of justice [CD1] o You must act in the best interests of each client [CD2] o You must act with honesty and integrity [CD3] o You must maintain your independence [CD4]
o o o o o o
You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession [CD5] You must keep the affairs of each client confidential [CD6] You must provide a competent standard of work and service to each client [CD7] You must not discriminate unlawfully against any person [CD8] You must be open and co-operative with your regulators [CD9] You must take reasonable steps to manage your practice, or carry out your role within your practice, competently and in such a way as to achieve compliance with your legal and regulatory objectives [CD10]
Is there anything in the new Handbook staying the same? Some parts are staying the same, yes. For example, the ‘Cab Rank’ Rule remains and it has been extended to apply to instructions for work in England and Wales coming from lawyers in Scotland, Northern Ireland and European Economic Area Member States. Similarly, the ban on referral fees will also continue.
What sorts of things have been taken out? There are a number of deliberate omissions from the new Handbook, which were no longer thought necessary, these include: the requirement to have a professional client present when appearing in court; detailed rules on fees; and detailed rules on advertising.
How will the new Handbook be enforced? Underpinning the new Handbook will be new approaches to enforcement and supervision. The BSB recently consulted on the new supervision strategy, which mainly focuses at the chambers or entity level (although supervision will also be available to address noncompliance by individual barristers, where appropriate). For chambers (and in due course entities), we are proposing on-going assessment of the likelihood and potential impact of them not complying with their regulatory requirements. A set of new enforcement policies will also be applicable from January 2014. These include extending administrative sanctions to cover breaches of any rule with the fine limit being raised to £1,000. Where administrative sanctions are not considered appropriate the breach will be treated as professional misconduct and, where it is in the public interest to do so, disciplinary action will be pursued.
Whose responsibility will it be to comply with the new Handbook? Individual responsibility is at the heart of the new regulatory regime. Responsibility for ensuring compliance with the new Handbook will lie with the individual barristers and the chambers and entities in which they work. And so a further change will be the introduction of a duty to report – by oneself or others – serious misconduct to the BSB. While this is a change for the Bar, such duties are already established in other regulatory regimes and are important for public protection and confidence in the profession.
To whom will it apply? The new Handbook is geared towards individual barristers. In parallel with launching the new code of conduct for individual barristers, we will also launch our new regulatory framework for entities (once approval from the LSB has been obtained for the BSB to extend its regulation to entities). As with individuals, firms or companies are required under the LSA 2007 to be authorised before they can undertake reserved legal activities. At present, barristers wishing to form a partnership or company need the entity to be regulated by another approved regulator (such as the SRA). The BSB will be seeking approval of rules which allow it to regulate entities owned and managed by different types of lawyers and, in
addition, designation as a licensing authority for Alternative Business Structures (ABSs) – that is, entities with some non-lawyer ownership or management. Becoming a regulator of entities will further enable barristers to develop new business models, which will leave them better placed to respond to changing demands from and expectations of clients. The further rules that will apply to entities have been agreed in draft by the BSB and are shown in strikethrough text in the new Handbook for information. However, these have not yet been approved by the LSB.
What will happen to the old Code of Conduct? The current Code of Conduct will be archived online, and will still be available to access from our website.
Where can I find out more information? To help the Bar get to grips with the new Handbook, a new electronic version of the Handbook is being produced. This will be compatible with smart phones and tablets; it boasts an improved search and navigation function to guide barristers through the Handbook and can be accessed offline via mobile devices once downloaded.
Where can I download the app? The app will be available to download from www.barstandardsboard.org.uk/handbook in autumn 2013.
Where else can I access information about the Handbook? A series of road-shows, podcasts and webinars will also be available from September. For more information, please visit: www.barstandardsboard.org.uk/handbook.
Where do I go if I have a question about it? If you’re a barrister with a question about the new Handbook you can email
[email protected] 