PROFESSIONAL ETHICS GUIDE

2019-2020
Bar Professional Training Course
TABLE OF CONTENTS

SYLLABUS 1

PRELIMINARY MATTERS – PART A OF THE HANDBOOK ...................................... 5

1 The Bar Standards Board ................................................................................................... 5

2 The BSB Handbook ............................................................................................................ 5

3 Application of the Handbook ............................................................................................. 6

THE CORE DUTIES ............................................................................................... 7

CHAPTER 1: CD 1 ................................................................................................. 9

1 The extent of the duty ........................................................................................................ 9

2 How CD 1 relates to other Core Duties ............................................................................... 9

3 Your role as an advocate ................................................................................................. 10

4 Further aspects of your Duty to the Court ......................................................................... 10

5 Putting forward a case which you do not believe.............................................................. 11

6 The client admits their guilt but wants to plead not guilty ................................................. 11

7 The client has previous convictions which he does not want to reveal............................... 12

8 Undertakings .................................................................................................................. 12

CHAPTER 2: CD 2, CD 6 AND CD 7 .................................................................... 13

1 How CD 2 relates to other Core Duties ............................................................................. 13

2 The extent of the duties under CDs 2, 6 and 7................................................................... 13

3 Advising on Different Legal Representation ..................................................................... 14

4 Clash of Hearing Dates .................................................................................................... 14

5 Specific provisions relating to CD 7 ................................................................................. 15

6 Not misleading clients about the services you are offering ............................................... 17

CHAPTER 3: ACCEPTING AND RETURNING INSTRUCTIONS ............................. 19

1 Circumstances where you MUST NOT ACCEPT instructions ............................................. 19

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2 Investigating and collecting evidence and taking witness statements ............................... 20

3 Circumstances where you MUST RETURN instructions already accepted .......................... 21

4 Circumstances where you MAY RETURN instructions ....................................................... 21

5 Necessary Steps when Returning Instructions .................................................................. 22

6 Miscellaneous Provisions about the Return of Instructions ................................................ 22

7 The Requirement NOT to withhold your services ............................................................. 23

8 The ‘Cab Rank’ Rule ........................................................................................................ 23

9 Exceptions to the ‘Cab Rank’ Rule ................................................................................... 24

10 Rules when Accepting Instructions .................................................................................. 25

CHAPTER 4: CD 3, CD 4 AND CD 5 .................................................................... 27

1 The extent of the duties under CDs 3 and 4 ...................................................................... 27

2 Personal Responsibility for all work done ........................................................................ 27

3 The duty to act with Honesty, and with Integrity ............................................................... 27

4 The Duty to Act Independently ........................................................................................ 28

5 Media Comment.............................................................................................................. 29

6 Social Media.................................................................................................................... 29

7 Additional Matters Relevant to CDs 3and5 ....................................................................... 29

8 Referral Fees ................................................................................................................... 30

9 Foreign Work .................................................................................................................. 31

CHAPTER 5: CD 8 ............................................................................................... 32

1 Duty not to Discriminate .................................................................................................. 32

2 Application of the Duty .................................................................................................... 32

3 Key Types of Discrimination ............................................................................................ 33

4 Other Important Concepts ............................................................................................... 34

5 Discrimination in respect of Service Provision ................................................................. 35

CHAPTER 6: CD 9 ............................................................................................... 36

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1 Self-Reporting to the BSB ................................................................................................. 36

2 Reporting another Barrister to the BSB ............................................................................. 37

3 Providing Information to the BSB ...................................................................................... 38

4 Compliance with BSB decisions and sanctions.................................................................. 39

5 BSB access to Premises and Documents ........................................................................... 39

6 The Legal Ombudsman ................................................................................................... 39

7 Ceasing to Practise .......................................................................................................... 39

CHAPTER 7: CD 10 ............................................................................................. 42

1 The scope of the Duty ...................................................................................................... 42

2 Record Keeping .............................................................................................................. 42

3 Insurance ........................................................................................................................ 42

4 Handling Client Money.................................................................................................... 43

5 Associations .................................................................................................................... 43

6 Making and Receiving Referrals ...................................................................................... 44

7 Outsourcing .................................................................................................................... 45

8 Handling Confidential Information ................................................................................... 45

CHAPTER 8: SCOPE OF PRACTICE .................................................................... 48

1 Capacities in which you MAY act ..................................................................................... 48

2 Pupil Barristers................................................................................................................ 48

3 Barristers of less than 3 years standing ............................................................................ 48

4 Self-Employed Barristers ................................................................................................. 49

5 Employed Barristers........................................................................................................ 50

6 Legal Advice Centres ...................................................................................................... 52

7 Transparency Rules on Price, Service and Redress .......................................................... 52

CHAPTER 9: PRACTISING CERTIFICATE RULES ................................................. 53

1 Eligibility for a Practising Certificate ............................................................................... 53

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2 Full Practising Certificates ............................................................................................... 53

3 Provisional Practising Certificates ................................................................................... 53

4 Litigation Extensions ....................................................................................................... 53

5 Guidance on Practising Certificates for Pupils and Newly Qualified Barristers .................. 54

6 Miscellaneous Rules about Applications .......................................................................... 55

CHAPTER 10: THE CPD RULES ......................................................................... 57

1 Continuing Professional Development ............................................................................. 57

2 New Practitioner Programme........................................................................................... 57

3 Established Practitioner Programme................................................................................ 57

4 General provisions about CPD ........................................................................................ 58

CHAPTER 11: PUBLIC ACCESS WORK AND LICENSED ACCESS WORK .......... 59

1 Public Access Work......................................................................................................... 59

2 Rules about accepting a public access case ..................................................................... 59

3 Duty to refuse instructions or withdraw from a public access case .................................... 60

4 Conducting Litigation in a Public Access Case ................................................................. 61

5 Duties upon accepting a Public Access case .................................................................... 61

6 Record Keeping and Retention of Documents................................................................... 62

7 Barristers with less than 3 years’ standing ........................................................................ 63

8 Supervising Immigration Advisers ................................................................................... 63

9 Licensed Access Work .................................................................................................... 63

10 Circumstances where you MUST NOT accept or MUST return instructions in a licensed
access case............................................................................................................................... 64

11 Acceptance of Licensed Access Instructions .................................................................... 64

12 Duty to report non-compliance to the BSB ........................................................................ 65

13 Record Keeping and Retention of Documents................................................................... 65

CHAPTER 12: UNREGISTERED BARRISTERS, PUPILS AND STUDENTS .............. 67

1 Definition and Scope of Work .......................................................................................... 67

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2 Matters of which a client of an unregistered barrister must be aware ............................... 67

3 When the Rule does NOT apply ....................................................................................... 68

4 Core Duties and Rules that apply to Unregistered Barristers ............................................ 69

5 Rules in relation to pupils ................................................................................................ 69

6 Conduct of Students ........................................................................................................ 69

CHAPTER 13: RULES ABOUT COMPLAINTS...................................................... 73

1 Informing Clients of the Right to Complain....................................................................... 73

2 Dealing with Complaints ................................................................................................. 73

3 Guidance on First Tier Complaint Handling ..................................................................... 74

CHAPTER 14: THE CODE FOR CROWN PROSECUTORS .................................. 75

1 General Principles .......................................................................................................... 75

2 The FULL CODE Test ....................................................................................................... 75

3 The THRESHOLD TEST ..................................................................................................... 76

CHAPTER 15: THE FARQUHARSON GUIDELINES – THE ROLE AND

RESPONSIBILITIES OF THE PROSECUTION ADVOCATE .................................... 77

1 Duties upon being instructed by the CPS ......................................................................... 77

2 Withdrawal of Instructions ............................................................................................... 77

3 Decision Making ............................................................................................................. 77

4 Last Minute Changes of Advice ........................................................................................ 78

5 Judicial Approval............................................................................................................. 78

CHAPTER 16: MONEY LAUNDERING AND TERRORIST FINANCING ................ 79

1 Introduction .................................................................................................................... 79

2 Duties imposed on ALL Barristers .................................................................................... 79

3 Legal Professional Privilege ............................................................................................ 80

4 Enhanced Duties when carrying out Transactional or Tax Work ....................................... 80

5 Offences that Barristers can commit ................................................................................. 81

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6 Making a Disclosure to NCA ............................................................................................ 81

7 Seeking Legal Advice ...................................................................................................... 81

INDEX 82

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Syllabus

Centralised Examination
Board
Professional Ethics
UPDATED Syllabus
Guidance 2018-19
Updated Syllabus Guidance
Prologue
The protocols for allowing in-year amendments to the syllabus guidance permit a notice
of amendment to be issued prior to 1 February of the year in which the examinations
will be sat by candidates.

A. INTRODUCTION
This guidance is issued to provide clarity for BPTC providers and students in respect of
the source material, which will be used by the Ethics Team of the Centralised
Examination Board (CEB) when setting the Ethics examinations in the academic year
2019-2020.

B. SYLLABUS
The SAQs for all Ethics assessments in 2020 will be drawn from the following source
material (NB. When sections of the Handbook are referred to, the material included is
all rules and guidance within those sections):

1. The Bar Standards Board Handbook – 4th edition updated September 2019
(Version 4.2) [as published on the BSB website]

Part 1
A-D
Part 2
A
B
C1, C2, C3, C4, C5.1 & C5.2
D1.1 (rC99-rC105), D2.1 & D2.2
D4
D6

Part 3
B2, B3, B7 & B9
C1 & C2

Part 4
C – rQ130-135

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 Part 6
The definitions section will not be discretely examined, but knowledge
of the Handbook’s definitions relevant to the rest of the syllabus is
required.

Bar Standards Board Handbook Equality Rules

Sections 1 & 2

2. Code Guidance
Guidance on Practising Rules and Requirements
• Guidance for Unregistered Barristers (Barristers without Practising
Certificates) - Supplying Legal Services and Holding Out
• Guidance for Barristers Supervising Immigration Advisers (Oct 2018)
• The Public Access Scheme Guidance for Barristers (revised Feb 2018)
• Guidance on Conducting Litigation (Sept 2017)

Guidance on the Administration of a Barrister’s Practice

• First Tier Complaints Handling (May 2018)
• Guidance on Referral and Marketing Arrangements for Barristers
Permitted by the BSB
• Confidentiality Guidance (updated March 2019)

Guidance on the Professional Conduct of Barristers

• Guidance on Reporting Serious Misconduct of Others (September 2018)
• Guidance on Clash of Hearing Dates (Listings)
• Guidance on use of Social Media (Feb 2017)

Additional Guidance
▪ Guidance on the Transparency Rules
o Introduction to the guidance
o Mandatory transparency rules for all self-employed barristers,
chambers and BSB entities
o Additional transparency rules for those undertaking Public Access
work
▪ Regulatory requirements for barristers – practising certificates
(https://www.barstandardsboard.org.uk/regulatory-requirements/for-
barristers/practising-certificate/)
▪ Guidance on Practising Certificates for Pupils and Newly Qualified
Barristers

3. Crown Prosecution Service Publications

• The Code for Crown Prosecutors – October 2018 (8th Edition)

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 • The Farquharson Guidelines – Role of Prosecuting Advocates

4. Money Laundering and terrorist financing

In outline only – based on the Executive Summary (paragraphs 1 to 35) of the

Bar Council’s Money Laundering and Terrorist Financing practice note.

C. IMPORTANT ADDITIONAL NOTES FOR PROVIDERS & STUDENTS

In answering SAQs and applying ethical principles drawn from the material above,
students will not be required to quote specific reference number(s) for outcomes, rules
or guidance. However, accurate identification and quoting of the Core Duties applicable
to any given scenario will be expected. The habit of listing all ten core duties at the
beginning of an answer, irrespective of their relevance to the scenario, is not only to be
deprecated but is unlikely to secure for the student any credit available for the correct
identification of applicable duties in the given scenario. For credit to be earned,
students must demonstrate within their answers that they have correctly identified only
those duties that are applicable and how they impact on the rest of the answer.

NB Close application of ethical principles to the facts outlined in each scenario is the key
to success in this assessment. In order to obtain high or full marks candidates are
advised to write in full sentences so as to evidence their knowledge and understanding
of the issues involved and their evaluation of the correct ethical approach to adopt in
the circumstances. Examiners are looking for answers that clearly demonstrate a full
appreciation of the Core Duties and ethical issues involved. Therefore, answers should
provide a detailed description of these as well as a comprehensive and clearly reasoned
explanation in support of the resolution proposed. As a result, bullet point style
answers should be avoided and such answers may attract no marks in cases where an
examiner takes the view that the ethical issues have not been properly understood.

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Notes

4
Preliminary Matters – Part A of the Handbook

1 The Bar Standards Board

(a) The Bar Standards Board (“BSB) is the specialist regulator focussing on I1
the regulation of ADVOCACY, LITIGATION AND LEGAL ADVISORY
SERVICES.
(b) The Regulatory Objectives of the BSB include (but are not limited to): I2
(i) Protecting and promoting the PUBLIC INTEREST;
(ii) Supporting the RULE OF LAW;
(iii) Improving ACCESS TO JUSTICE;
(iv) Encouraging an INDEPENDENT… and EFFECTIVE LEGAL
PROFESSION.
(c) For the full list see Part 1 - A1 of the Handbook
2 The BSB Handbook
(a) The BSB Handbook (“the Handbook”) sets out THE STANDARDS that the I5
BSB requires the people it regulates to comply with.
(b) The Handbook consists of the 10 Core Duties (CDs), Outcomes, Rules I6
and Guidance.
(i) (The outcomes are not widely covered on the course and they
have not been the subject of an exam question since the CEB
started setting the assessment. However, you may wish to look at
them from time to time as they are quite a helpful introduction to
some of the Core Duties.)
(c) The Core Duties:
(i) These are the MANDATORY STANDARDS that all barristers are
required to meet;
(ii) They define the core elements of PROFESSIONAL CONDUCT;
(iii) Disciplinary proceedings may be brought against a barrister
where the BSB believes there has been a breach of the Core
Duties.
(d) The Rules:
(i) These supplement the Core Duties and MUST be followed.
(ii) Again, disciplinary proceedings may be brought by the BSB where
it believes that a barrister has breached the Rules.
(iii) The rules are not exhaustive. Therefore in any situation where no
specific rule applies, reference should be made to the Core
Duties.

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 (e) Guidance:
(i) Assists in the interpretation of the Core Duties or Rules.
(ii) Provides examples of the types of conduct or behaviour that the
Rules are intended to encourage; or, conversely, which may
constitute non-compliance with the Rule or Core Duty;
(iii) To explain how a Rule or Core Duty applies to a particular person
and how that particular person could comply with the Rule or CD
(e.g. employed barristers or unregistered barristers)
3 Application of the Handbook
(a) The Handbook applies to (but is not limited to): rI7
(i) Barristers who hold a practising certificate;
(ii) Pupils;
(iii) Unregistered barristers: i.e. all other barristers who do not hold a
practising certificate but have been called to the Bar by one of
the Inns and have not ceased to be a member of the Bar;
(iv) Individuals who are authorised to provide reserved legal activities
by an Approved Regulator (e.g. the Law Society or CILEX) where
employed by a BSB authorised person
(1) The definition of reserved legal activities includes:
[a] exercising rights of audience
[b] conducting litigation
[c] probate activities
[d] notarial activities
[e] administration of oaths
[f] reserved instrument activities
[g] In respect of the Bar Training Rules, BPTC students.
(b) For the full list see Part 1 – B of the Handbook

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THE CORE DUTIES

CD1 You must observe your DUTY TO THE COURT in the administration of justice.
CD 2 You must act in the BEST INTERESTS of each client.
CD 3 You must act with HONESTY, and with INTEGRITY.
CD 4 You must maintain your INDEPENDENCE.
CD 5 You must NOT behave in a way which is likely to DIMINISH THE TRUST AND
CONFIDENCE which the PUBLIC places in you or the profession.
CD 6 You must keep the affairs of each client CONFIDENTIAL.
CD 7 You must provide a COMPETENT STANDARD OF WORK AND SERVICE to each
client.
CD 8 You must NOT DISCRIMINATE unlawfully against any person.
CD 9 You must be OPEN and CO-OPERATIVE with your REGULATOR.
CD 10 You must take reasonable steps to MANAGE YOUR PRACTICE COMPETENTLY
and in such a way as to achieve compliance with your legal and regulatory
obligations.

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Notes

8
Chapter 1: CD 1

CD1 You must observe your DUTY TO THE COURT in the administration of justice
1 The extent of the duty
(a) You owe a duty to the COURT to act with independence in the interests rC3
of justice. This duty overrides any inconsistent obligations which you
may have (other than obligations under the criminal law).
(b) It includes the following specific obligations: rC3.1
(c) You must NOT, either knowingly or recklessly, MISLEAD THE COURT;
(i) This will include NOT:
(1) Making any submission, representation or any other rC6.1.a
statement which you know or are instructed is UNTRUE or
MISLEADING;
(2) Asking questions which suggests facts to a witness which rC6.1.b
you know or are instructed are UNTRUE or MISLEADING;
(3) Calling witnesses to give evidence or putting witness rC6.2
statements or affidavits before the court, which you know
or are instructed are UNTRUE or MISLEADING, unless you
make the true position clear to the court.
(4) (See0. below for an example of the application of this rule)
(ii) Knowingly misleading the court includes BEING COMPLICIT in gC4.1
another person misleading the court;
(iii) Knowingly misleading the court also includes INADVERTENTLY gC4.2
misleading the court, if you later realise that you have misled the
court and you fail to correct the position;
(iv) The duty CONTINUES to apply for the DURATION of the case. gC4.4
2 How CD 1 relates to other Core Duties
(a) Your duty to the court OVERRIDES your duty to act in the best interests rC4
of your client (CD2).
(b) Your duty to the court does NOT require you to act in breach of your rC5
duty to keep the affairs of each client confidential (CD6).
(i) If there is a risk that the court will be misled unless you disclose gC11
CONFIDENTIAL INFORMATION that you have learned in the course
of your instructions you should seek the CLIENT’S PERMISSION TO
DISCLOSE the information to the court.
(1) If the client REFUSES to allow you to make the disclosure
then you must CEASE TO ACT and RETURN YOUR
INSTRUCTIONS. In these circumstances you must NOT
REVEAL the information to the court.

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 (2) Similarly, you CANNOT continue to act if you become aware
that the client (or your professional client) POSSESSES A
DOCUMENT which should have been but HAS NOT BEEN
DISCLOSED, UNLESS your client agrees to the disclosure of
the document. Again, if you withdraw, you must NOT
REVEAL the existence of the document to the court or your
opponent.
(3) (see paragraph 3(b)(ii). below) gC13
3 Your role as an advocate
(a) You MUST NOT ABUSE your role as an advocate. rC3.2
(b) Examples of abusing your role as an advocate include: rC7.1
(i) Making statements or asking questions merely to INSULT,
HUMILIATE, or ANNOY a witness or any other person.
(ii) Making SERIOUS ALLEGATIONS against A WITNESS whom you rC7.2
have had the opportunity to cross-examine, UNLESS you have put
the allegation to the witness in cross-examination.
(iii) Making a SERIOUS ALLEGATION against ANY PERSON, or rC7.3
suggesting that a person is guilty of an offence with which your
client is charged unless:
(1) You have REASONABLE GROUNDS for making the allegation;
(2) The allegation is RELEVANT to your client’s case or the
credibility of the witness; and
(3) Where the allegation relates to a 3 rd party, you avoid naming
them in open court unless this is reasonably necessary.
(iv) Putting forward to the court a PERSONAL OPINION of the facts or rC7.4
the law UNLESS you are invited or required to by the court (or by
law).
4 Further aspects of your Duty to the Court
(a) The following would constitute a breach of your duty to the Court
under CD1:
(i) Not taking reasonable steps to AVOID WASTING THE COURT’S rC3.3
TIME.
(ii) Not taking reasonable steps to ensure that the court has and is rC3.4
aware of all RELEVANT AUTHORITIES and LEGISLATIVE
PROVISIONS.
(1) This will include putting before the court any authorities gC5
which are ADVERSE TO YOUR CLIENT’S POSITION.
(iii) Failing to ensure that your ability to act independently (CD4) is rC3.5
not compromised.

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5 Putting forward a case which you do not believe
(a) Your duty to the court does NOT prevent you from putting forward your gC6
client’s case simply because you DO NOT BELIEVE the facts that the
client is telling you. It is for the court or jury NOT you to decide whether
your client is to be believed.
(b) You should DRAW TO THE CLIENT’S ATTENTION other evidence which gC7
conflicts with their own account and you are entitled to point out that
the court may find it difficult to accept the client’s own account. But if
the client remains ADAMANT that they are telling the truth then you
MUST PUT FORWARD THEIR VERSION of events and you will not be in
breach of CD 1 if you do this.
(c) Equally, you may have to call a HOSTILE WITNESS whose evidence you gC7
wish to assert is untrue, again you will not be in breach of your duty not
to mislead the court provided you make the position clear to the court.
6 The client admits their guilt but wants to plead not guilty
(a) Your duty not to mislead the court may on occasions clash with your
duty to act in the client’s best interests, for example where your client
admits that they have committed a criminal offence but wishes to
maintain a not guilty plea.
(b) In order to comply with your duties:
(i) You MUST NOT DISCLOSE THE CLIENT’S CONFESSION to the court gC9
without his/her consent; and
(ii) You will NOT be misleading the court if you TEST THE
PROSECUTION CASE in cross examination;
(c) You may address the judge or jury to the effect THAT THE PROSECUTION
HAS NOT SUCCEEDED IN PROVING to the requisite standard either:
(i) that there is A CASE FOR YOUR CLIENT TO ANSWER (in a
submission of no case to answer); or
(ii) THE CLIENT’S GUILT (in a closing speech to the jury).
(d) However, you WOULD BE MISLEADING the court if you were to gC10
ADVANCE A POSITIVE CASE that the client was not or might not be
guilty of the offence by:
(i) SUGGESTING to a prosecution witness that YOUR CLIENT DID NOT
COMMIT THE OFFENCE,
(ii) CALLING YOUR CLIENT or any other witness to show that your
client did not commit the offence,
(iii) SUBMITTING to the judge or jury THAT YOUR CLIENT DID NOT
COMMIT THE OFFENCE,
(iv) Suggesting that someone else had committed the offence,
(v) Putting forward an ALIBI.

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7 The client has previous convictions which he does not want to reveal
(a) If the client tells you that he has previous convictions (“pre-cons”) of gC12
which the prosecution is unaware, you may NOT DISCLOSE these
without the client’s consent.
(i) However, in a case where a MANDATORY sentence applies (e.g. a
3rd domestic burglary), you MUST tell the client that if they refuse
to permit you to disclose the pre-cons, then you WILL HAVE to
cease to act in the case and return your instructions.
(b) In any other case falling under (a) above, where the client does not give
consent to reveal the pre-cons you can continue to act but:
(i) You must NOT say anything which MISLEADS THE COURT.
(ii) What you can say in MITIGATION WILL BE LIMITED by the
circumstances.
(iii) You CANNOT ADVANCE that the client is of GOOD CHARACTER.
(iv) If the court asks you a DIRECT QUESTION about your client’s pre-
cons, you cannot give a misleading answer. Therefore, if the client
still refuses to allow you to reveal the pre-cons, you would have to
cease to act.
(c) You must explain these points to the client.
8 Undertakings
(a) You must comply with any UNDERTAKING you give to the court in the rC11
course of conducting litigation within any agreed timescale or within a
reasonable period of time.

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Chapter 2: CD 2, CD 6 and CD 7

CD 2 You must act in the BEST INTERESTS of each client

CD 6 You must keep the affairs of each client CONFIDENTIAL
CD 7 You must provide a COMPETENT STANDARD OF WORK AND SERVICE to each
client
1 How CD 2 relates to other Core Duties
(a) Your duty under CD 2 is subject to your duties under CDs 1, 3 and 4. rC16
2 The extent of the duties under CDs 2, 6 and 7
(a) Your duty under CD 2 is to your LAY CLIENT and NOT to your gC36
professional client or other intermediary.
(b) Your duty to act in accordance with CDs 2, 6 and 7 includes the
following. You MUST:
(i) Promote FEARLESSLY and by all proper and lawful means the rC15.1
client’s BEST INTERESTS;
(ii) Do so WITHOUT regard to your OWN INTERESTS or any rC15.2
consequences to you (which may include taking reasonable steps
to mitigate the effects of any breach of the Handbook);
(iii) Do so WITHOUT regard to the consequences to any other person rC15.3
(including your instructing solicitor or employer).
(1) If you consider that your professional client, or another gC51
solicitor or barrister or any other person acting on your
client’s behalf has been NEGLIGENT, you should ENSURE that
THE CLIENT IS ADVISED OF THIS.
(iv) NOT permit ANYONE (including your instructing solicitor or rC15.4
employer) to LIMIT YOUR DISCRETION as to how the interests of
your client can best be served;
(v) Protect the CONFIDENTIALITY of each client’s affairs, except for rC15.5
disclosures which are required or permitted by law or to which rc15.6
the client gives INFORMED CONSENT.
(1) There are very limited circumstances in which you would be
required to make a disclosure by law without your client’s
consent. They generally arise in Proceeds of Crime Act cases
or family law proceedings that involve the welfare of
children.
(2) This duty extends to pupils of, and those who are devilling gC46
for, self-employed barristers as if the client of the self-
employed barrister was the pupil’s or devil’s own client

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 [a] devilling is the practice of doing work in a case for
another (usually more senior) member of chambers. It
is usually done by 2nd or 3rd six pupils, or junior
tenants. The ‘devil’ is paid by the barrister with
conduct of the case for the work they do.
3 Advising on Different Legal Representation
(a) Your duty under CD 2 includes a duty to consider whether the client’s rC17
best interests are served by different legal representation, and if so, to
advise the client accordingly.
(b) This duty may require you to advise the client to be represented by: gC49
(i) A DIFFERENT advocate or legal representative (whether more
senior, or junior, or with different experience from you)
(ii) MORE THAN ONE advocate or legal representative (e.g.
instructing a Q.C. and a junior)
(iii) FEWER advocates or legal representatives than have been
instructed;
(iv) In a case where you have an instructing solicitor, DIFFERENT
SOLICITORS.
(c) You may only accept instructions for MORE THAN ONE client if you are gC37
able to ACT IN THE BEST INTERESTS OF EACH CLIENT as if that client
were your only client. If you are unable to act accordingly, you must
ADVISE THE CLIENT TO SEEK DIFFERENT REPRESENTATION.
(i) This rule is especially relevant where you are instructed to
represent two or more clients and there is a conflict of interest
between two or more of them.
4 Clash of Hearing Dates
(a) A COMPETENT STANDARD OF WORK AND SERVICE (CD 7) includes:
(i) A duty to inform your professional client (or lay client if directly rC18
instructed by them) if:
(1) it becomes apparent THAT YOU WILL NOT BE ABLE TO CARRY
OUT YOUR INSTRUCTIONS WITHIN THE TIME REQUESTED, or
within a reasonable time after receipt of instructions; OR
(2) there is an appreciable RISK THAT YOU MAY NOT BE ABLE TO
UNDERTAKE THE INSTRUCTIONS.
(ii) In these circumstances, you should make sure as far as possible
that there is sufficient time to enable appropriate steps to be
taken to protect the client’s interests.

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 (b) The BSB Guidance on Clash of Hearing Dates contains the following
requirements:
(i) You should make all reasonable efforts to prevent a clash of
hearing dates. This requires effective:
(1) Communication with the court; and
(2) Diary management.
(ii) If it is impossible to avoid a clash of hearings, you must exercise
your PROFESSIONAL JUDGEMENT in deciding which hearing to
attend and which to return to another barrister.
(iii) Some types of hearing may take PRECEDENCE as a matter of law
or procedure – you should take direction from the Court on this
point if appropriate (e.g. if a judge has told you that you must
attend a particular hearing then in the absence of other relevant
circumstances, that hearing will take precedence).
(iv) Where an order of precedence is not clear, you should consider
your duty under CD2, and in particular, which client is likely to be
MORE PREJUDICED by alternative representation being arranged
at short notice. You should particularly consider the needs of
VULNERABLE clients.
(v) Further, you should consider all the relevant circumstances of
each case including:
(1) The LENGTH OF TIME you have been instructed on each
case;
(2) The COMPLEXITY of each case;
(3) The AMOUNT OF WORK you have already done on each case
(including whether you have already seen any of the clients
in conference);
(4) The likely IMPACT on each client.
(vi) You should take all reasonable steps to ASSIST clients to find
alternative representation where you are unable to attend a
hearing.
5 Specific provisions relating to CD 7
(a) Providing a COMPETENT STANDARD OF WORK AND SERVICE (CD 7) also
includes:
(i) Treating each client with COURTESY and CONSIDERATION; gC38.1
(ii) Advising your client in TERMS THEY UNDERSTAND; gC38.2
(iii) Taking all reasonable steps to avoid incurring UNNECESSARY gC38.3
EXPENSE;
gC38.4

15
(iv) READING YOUR INSTRUCTIONS PROMPTLY
(1) This will be particularly important where there is a time limit
or limitation period in the case.
(v) Doing what you can to ensure that YOUR CLIENT UNDERSTANDS gC41
THE LEGAL PROCESS and what to expect from it and you.
(vi) Avoiding any UNNECESSARY DISTRESS to your client. gC41
(1) This is particularly important when you are dealing with a
VULNERABLE client.
(vii) Keeping professional knowledge and skills UP TO DATE. gC38.3
(viii) Regularly taking part in PROFESSIONAL DEVELOPMENT activities. gC39
(ix) Complying with any specific training requirements of the BSB gC39
before undertaking certain activities such as:
(1) Attending a police station to advise a suspect; gC39
(2) Undertaking public access work (see Chapter 10).
(x) The Guidance on Investigating and Collecting Evidence and Taking
Witness Statements deals with how barristers should assess the
risk of being called upon to give evidence in a case when
accepting a brief.

16
6 Not misleading clients about the services you are offering
(a) If you supply legal services you must NOT MISLEAD, or cause or permit rC19
to be misled, any client or potential client about:
(i) The NATURE AND SCOPE of the legal services on offer;
(ii) The TERMS on which they are supplied;
(iii) WHO WILL CARRY OUT THE WORK and the basis of CHARGING;
(iv) WHO IS LEGALLY RESPONSIBLE for the provision of the services;
(v) Whether YOU ARE ENTITLED to supply them;
(vi) The extent to which YOU ARE REGULATED when supplying them
and by whom;
(vii) The extent to which you are covered by PROFESSIONAL
INDEMNITY INSURANCE.
(b) You RISK MISLEADING A CLIENT (and thus breaching the rules set out
above) in the following circumstances:
(i) Knowingly or recklessly publishing ADVERTISING MATERIAL which gC57
is INACCURATE or likely to MISLEAD.
(ii) If your chambers branding or advertising gives the appearance of gC56
an entity or partnership, without making clear that members of
chambers are self-employed and NOT responsible for each other’s
work;
(iii) Charging at your own hourly rate for work done by a pupil or gC59
devil;
(iv) If you are a PUPIL, HOLDING YOURSELF OUT AS A MEMBER OF gC62
CHAMBERS, or permitting your name to appear as such.
(v) If a self-employed barrister SHARES PREMISES WITH SOLICITORS gC54
without making it clear that the 2 entities are separate and
independent;
(vi) If you carry out PUBLIC ACCESS WORK but are NOT AUTHORISED gC58
TO CONDUCT LITIGATION, and you do not make this clear to a
client.

17
Notes

18
Chapter 3: Accepting and Returning Instructions

1 Circumstances where you MUST NOT ACCEPT instructions

(a) You must NOT accept instructions to act in a case if: rC21
(i) You CANNOT fulfil your obligation to ACT IN THE CLIENT’S BEST rC21.1
interest due to any existing or previous instructions;
(ii) There is a CONFLICT OF INTEREST, or a REAL RISK of a conflict of rC21.2
interest, between your own personal interests and the interests
of the prospective client;
(iii) There is a CONFLICT OF INTEREST, or a REAL RISK of a conflict of rC21.3
interest, between the prospective client and one or more of your
former or current clients, UNLESS:
(1) You FULLY DISCLOSE to the relevant clients and prospective gC69
clients (as appropriate) the extent and nature of the conflict;
AND
(2) ALL of the clients who have an interest in the case give their rC21.3
INFORMED CONSENT to you acting; AND
(3) You are able to ACT IN THE BEST INTERESTS OF EACH CLIENT gC69
and independently.
(iv) There is a REAL RISK that: rC21.4
(1) information CONFIDENTIAL to another former or existing
client may be relevant to the prospective client’s case, AND
(2) the former or existing client DOES NOT CONSENT TO
DISCLOSURE of that confidential information, AND
(3) you could NOT properly serve the prospective client’s best
interests without disclosing the confidential information;
(v) Your instructions seek to LIMIT YOUR ORDINARY AUTHORITY or rC21.5
DISCRETION in the conduct of the case in court;
(vi) Your instructions require you to act OTHERWISE than in rC21.6
accordance with the LAW OR with the provisions of THE
HANDBOOK;
(vii) You are NOT COMPETENT OR LACK SUFFICIENT EXPERIENCE to rC21.8
handle the case
(1) (including your ability to work with vulnerable clients) gC71
(viii) YOU DO NOT HAVE ENOUGH TIME TO DEAL WITH THE CASE, rC21.9
unless the circumstances mean that it would still be in the client’s
best interests for you to accept the instructions;
rC21.10

19
 (ix) There is a real prospect that you will NOT BE ABLE TO MAINTAIN
YOUR INDEPENDENCE.
(1) Examples include cases where you are likely to be CALLED AS gC73
A WITNESS on a material question of fact
(x) You are NOT AUTHORISED or ACCREDITED to perform the work rC21.7
required by your instructions;
(1) Including where the case requires you to conduct litigation, gC70
and you have not been authorised to conduct litigation.
2 Investigating and collecting evidence and taking witness statements
(a) In respect of 1(a)(ix)(1) above the BSB Guidance on Self-Employed gC39
Practice is highly relevant. The Guidance makes clear that if you are
involved in the INVESTIGATION AND COLLECTION OF EVIDENCE in
circumstances where you might be needed to give evidence about
those activities then you MUST NOT accept a brief to conduct the case
in court. This includes not accepting a brief to act as a junior barrister
in a team of barristers (e.g. a case where you are to be led by a Q.C.),
because a junior barrister in such a team is expected to be in a position
to conduct the case in court if and when required.
(b) The ‘investigation and collection of evidence’ includes TAKING WITNESS
STATEMENTS where you are interviewing the potential witness with a
view to preparing a statement.
(c) The rule DOES NOT extend to settling a witness statement (i.e. drafting
a statement which complies with the appropriate court rules and
excludes irrelevant or inadmissible material) from a ‘proof of evidence’
statement which has already been taken by another person.
(d) The rule DOES NOT apply to a case where a barrister properly accepts a
brief and then, as part of his conduct of the case AT COURT, has to
URGENTLY take a statement from his client or a potential witness. It
applies where a barrister has investigated or collected evidence
BEFORE arriving at court.
(e) Appearing in a case in BREACH OF THIS RULE exposes the barrister to
the risk of a WASTED COSTS ORDER if the case had to be adjourned as a
result of the barrister’s withdrawal from the case, as well as
ENFORCEMENT ACTION being taken by the BSB for breach of the
Handbook.
(f) You have a duty to keep under review whether you should continue to
act in any case in the light of any developments which might engage
this rule (i.e. if you become involved in the collection or investigation
of evidence during your conduct of the case).

20
3 Circumstances where you MUST RETURN instructions already accepted
(a) Where you have accepted instructions but one or more of the rC25
circumstances in 3.1 above arises, you MUST CEASE TO ACT and return
your instructions promptly.
(b) In addition, you MUST CEASE TO ACT and return your instructions if:
(i) The client REFUSES TO AUTHORISE you to make some disclosure rC25.1
to the court which your duty to the court requires you to make;
(ii) You become aware of the existence of a document which should rC25.3
have been but has not been disclosed, and the client refuses to
authorise disclosure, contrary to your advice;
(iii) In a criminal or civil legal aid case, the FUNDING HAS BEEN rC25.1
WRONGLY OBTAINED BY FALSE OR INACCURATE INFORMATION
and your client refuses to remedy the situation immediately.
4 Circumstances where you MAY RETURN instructions
(a) You MAY CEASE TO ACT in a case and return your instructions if:
(i) Your PROFESSIONAL CONDUCT IS BEING CALLED INTO QUESTION; rC26.1
or
(ii) The CLIENT CONSENTS; rC26.2
(iii) You become aware of PRIVILEGED OR CONFIDENTIAL rC26.6
INFORMATION or documents belonging to another person in the
case in which you are instructed;
(1) (for further guidance on this topic you are advised to
consult the Bar Council Guidance on Material Disclosed to
Counsel by Mistake and the SGS 2 Decision Tree, both of
which are available on Moodle)
(iv) Despite all reasonable efforts, a hearing is fixed for a date when rC26.3.a
you are not available;
(v) Illness, injury, pregnancy, childbirth, bereavement or a similar rC26.3.b
matter makes you unable to perform the services required;
(1) You CANNOT rely on this rule to break a professional gC85
engagement for ANY OTHER personal reason.
(vi) You are unavoidably required to do JURY SERVICE; rC26.3.c
(vii) You do NOT RECEIVE PAYMENT when due in accordance with rC26.5
agreed terms, AND you make clear to the client that non-payment
will result in you ceasing to act, AND you give the client
reasonable notice of the requirement to pay;
(viii) There is some other substantial reason for doing so. rC26.8

21
5 Necessary Steps when Returning Instructions
(a) Notwithstanding the preceding rules, you MUST NOT cease to act or rC27.1
return instructions without either:
(i) Obtaining your client’s CONSENT; or
(ii) CLEARLY EXPLAINING to your client (lay or professional) the
REASONS for doing so.
(b) Further, you MUST NOT return any instructions to another person rC27.2
(usually another barrister) WITHOUT CONSENT from either your lay or
professional client.
(i) If you are planning to withdraw from a case because it appears gC73
likely that you will be called as a witness in the proceedings on a
material question of fact, you should ONLY WITHDRAW if you can
do so WITHOUT JEOPARDISING the client’s interests.
6 Miscellaneous Provisions about the Return of Instructions
(a) When deciding whether to cease to act in a case under these rules you gC83
should, subject to your duty to the court, ENSURE that the client is not
ADVERSELY AFFECTED because there is insufficient time to instruct new
counsel.
(b) If you are instructed by solicitors and they withdraw from the case you gC84
can NOT continue to act UNLESS:
(i) You are APPOINTED by the court; or
(ii) You receive NEW instructions.
(c) If you are appointed by the court, you are NOT bound by the ‘cab rank’ gC84
rule (see 8 below) and thus are NOT OBLIGED to accept the court’s
appointment.
(d) If a FUNDAMENTAL CHANGE is made to the BASIS OF YOUR gC87
REMUNERATION in a case, then you should treat the change as though
your initial instructions had been withdrawn and replaced by an offer of
new instructions on the new terms:
(i) You must then decide whether you are obliged to accept the new
instructions under the ‘cab rank rule’;
(ii) If you are so obliged, then you must accept them;
(iii) If not, then you may decline them;
(iv) If you decline the new instructions on this basis you will NOT be
treated as having ‘withdrawn’ from the case.

22
7 The Requirement NOT to withhold your services
(a) You must not withhold your services or permit your services to be rC28
withheld:
(i) On the ground that the NATURE of the case is OBJECTIONABLE to
you or to any section of the public;
(ii) On the ground that the CONDUCT, OPINIONS or BELIEFS of the
prospective client are UNACCPETBALE to you or to any section of
the public;
(iii) On any ground relating to the source of any FINANCIAL SUPPORT
which may properly be given to the prospective client for the
proceedings in question.
(b) This rule applies to any case irrespective of whether you are instructed
by a solicitor or directly by a lay client.
(c) The rule in 7(a)(iii) above operates to prevent barristers from refusing gC88
instructions because the client is entitled to Criminal or Civil Legal Aid
funding.
8 The ‘Cab Rank’ Rule
(a) The rule applies when: rC29
(i) You are acting as a SELF-EMPLOYED BARRISTER; AND
(ii) you receive instructions in a case from a PROFESSIONAL CLIENT;
AND
(iii) you possess the appropriate SENIORITY/ EXPERIENCE/
KNOWLEDGE of the area of law to act in the case.
(b) In such circumstances, YOU MUST ACCEPT THE BRIEF (subject to the
exceptions set out in 9 below).
(c) This rule applies irrespective of the following:
(i) The IDENTITY of the client;
(ii) The NATURE of the case;
(iii) Whether client is PUBLICLY FUNDED or not;
(iv) Any belief or opinion which you may have formed as to the
character, reputation, cause, conduct, guilt or innocence of the
client.
(d) The Cab Rank Rule applies to instructions received from ANY (legal) gC91B
PROFESSIONAL CLIENT (not just solicitors) regulated by another
approved regulator
(i) the list of approved regulators includes: Legal Executives, patent
attorneys, licensed conveyancers and law costs draftsmen

23
9 Exceptions to the ‘Cab Rank’ Rule
(a) The ‘cab rank’ rule does NOT apply if:
(i) You are REQUIRED TO REFUSE the instructions pursuant to rC30
paragraph 3.1. above;
(ii) You have not been offered a proper fee for your services;
(1) In determining whether you have been offered a proper fee gC90
you must have regard to:
[a] the complexity, length and difficulty of the case;
[b] your ability, experience and seniority;
[c] the expense which you will incur.
(2) You are NOT obliged to accept a conditional fee agreement gC91
under this rule;
(iii) The instructions require you to do something other than in the
course of ORDINARY WORKING TIME or require you to cancel an
existing diary commitment;
(iv) The potential for professional negligence liability exceeds the
level of professional indemnity insurance reasonably available to
you;
(v) You are a QC and the instructions require you to act without a
junior, where the circumstances require a junior;
(vi) The instructions require you to do any foreign work;
(vii) Your instructing solicitors:
(1) Are not accepting liability for your fees;
(2) Represent an unreasonable credit risk;
(3) Are instructing you as a lay client rather than in their
capacity as a professional client;
(viii) In any case where you are NOT to be paid by the Legal Aid agency
or the CPS, the ‘Cab Rank’ rule does not apply if:
(1) Your fees have not been agreed; or
(2) Having required your fees to be paid before acceptance of
instructions, those fees have not been paid;
(3) Accepting the instructions would require you to act other
than in accordance with your standard contractual terms, or
the Bar Council’s standard contractual terms.
(4) Examples of your professional client representing an gC91A
unreasonable credit risk for the purposes of 9(a)(vii)(2)
above include:

24
 [a] They appear on the Bar Council’s list of Defaulting
Solicitors;
[b] Another barrister has obtained judgment against them
which remains unpaid;
[c] The firm is subject to insolvency, an IVA or PVA;
[d] There is evidence of other unsatisfied court judgments
that call into question the solicitors’ ability to pay.
[e] Even where there is a serious credit risk you must
explore alternative payment methods before refusing
instructions, including, seeking payment of your fees
on account, or payment into a 3 rd party payment
service.
10 Rules when Accepting Instructions
(a) When you first accept instructions to act in a matter you MUST confirm rC22.1
in writing:
(i) Acceptance of the instructions; AND
(ii) The terms/ basis on which you will be acting, including the basis
of any charging.
(1) It is acceptable for your clerk to confirm acceptance and gC77
terms of acceptance on your behalf.
Chapter 4

25
Notes

26
Chapter 4: CD 3, CD 4 and CD 5

CD 3 You must act with HONESTY, and with INTEGRITY

CD 4 You must maintain your INDEPENDENCE
CD 5 You must not behave in a way which is likely to DIMINISH THE TRUST AND
CONFIDENCE which the PUBLIC places in you or the profession
1 The extent of the duties under CDs 3 and 4
(a) You must NOT do anything which could reasonably be seen by the rC8
public to undermine your HONESTY, INTEGRITY (CD 3) and
INDEPENDENCE (CD 4).
(i) Your duty to act in accordance with CDs 3 and 4 overrides your gC14
duty to act in the client’s best interests (CD 2).
2 Personal Responsibility for all work done
(a) You are PERSONALLY RESPONSIBLE for your own conduct and for your rC20
professional work. You MUST use your own PROFESSIONAL JUDGMENT
in relation to matters in which you are instructed. You must do this
IRRESPECTIVE of the views of your client, professional client, employer
or any other person.
(i) You are also personally responsible for the service provided by gC66
those who represent you in your dealings with clients, e.g. your
clerks.
(ii) You can outsource certain tasks to others (e.g. research) but you gC65
remain personally responsible for that work as well.
(1) (See 7.18. below for further rules on outsourcing)
3 The duty to act with Honesty, and with Integrity
(a) Your duty to act with honesty, and with integrity includes the following: rC9
You MUST:
(i) NOT knowingly or recklessly MISLEAD or attempt to mislead
ANYONE;
(ii) NOT draft any statement of case, witness statement, affidavit or
other document containing:
(1) Any statement of fact or contention that is NOT SUPPORTED
by your client or your instructions;
(2) Any contention which is NOT PROPERLY ARGUABLE;
(3) Any allegation of FRAUD, UNLESS you have CLEAR
INSTRUCTIONS to allege fraud and REASONABLY CREDIBLE
material which establishes an arguable case of fraud;

27
 (4) (in a witness statement or affidavit) any statement of fact
other than the evidence which you reasonably believe the
witness would give if the witness were giving evidence
orally;
(iii) NOT encourage a witness to give evidence which is MISLEADING
or UNTRUTHFUL.
(iv) NOT REHEARSE, PRACTISE WITH OR COACH a witness in respect of
their evidence.
(v) NOT COMMUNICATE with any witness (including the client) about
the case while the witness is giving evidence, WITHOUT the
permission of the opposing side or the court.
(1) This applies to any breaks (e.g. lunch or overnight) in the
witness’s evidence.
(vi) NOT make or offer PAYMENTS to any witness contingent on their
evidence or the outcome of the case.
(vii) only propose or accept LEGAL FEE ARRANGEMENTS.
4 The Duty to Act Independently
(a) The following may reasonably be seen as compromising your
independence:
(i) Offering, promising or giving to any client, professional client or gC18
intermediary:
(1) Any COMMISSION or REFERRAL FEE (of whatever size);
(2) A GIFT (apart from items of modest value);
(ii) LENDING MONEY to any client, professional client or intermediary;
(iii) Accepting ANY MONEY from any client, professional client or
intermediary, UNLESS it is a payment for your professional
services or reimbursement for expenses made on client’s behalf.
(See 7.6. below for further rules on handling client money)
(1) If you are offered a GIFT by any client, professional client or gC19
intermediary you must consider carefully whether the
CIRCUMSTANCES and SIZE of the gift would reasonably lead
others to think that your INDEPENDENCE had been
COMPROMISED. If it would lead to that conclusion, you
should REFUSE to accept the gift.
(2) The giving or receiving of ENTERTAINMENT at a gC20
disproportionate level may give rise to a similar issue and
should not be offered or accepted if it would lead others to
think that your INDEPENDENCE had been COMPROMISED.

28
5 Media Comment
The ethical obligations that apply in your professional practice generally gC22
continue to apply in relation to media comment. In particular, barristers are
reminded that compliance with Core Duties 2 – 6 should be considered
before making a media comment.
6 Social Media
(a) The BSB Guidance on Use of Social Media applies to barristers both in a
personal and professional capacity.
(b) Both practising and unregistered barristers are reminded that they are
bound by CD 5 at ALL TIMES and are expected to conduct themselves in
an appropriate manner. Comments on social media designed to
DEMEAN or INSULT are likely to breach CD 5.
(c) Becoming involved in heated debates or arguments could potentially
breach CDs 3 and or 8. Care should always be taken over the CONTENT
and TONE of what you are posting or sharing.
(d) Your risk breaching CD 6 by sending confidential communications to
your client over social media. You should avoid doing so unless:
(i) Your client has agreed to this form of communication; and
(ii) You are satisfied that your client’s confidentiality will not be at
risk.
(e) Your client’s confidentiality can be put at risk in less obvious ways, for
example by posting a status update “checking in” to a particular office
or other location.
7 Additional Matters Relevant to CDs 3and5
(a) In addition to these rules, other CONDUCT WHICH IS LIKELY to be
treated as a breach of CD 3 and your duty under CD 5 includes (but is
not limited to):
(i) Paying or receiving referral fees; (see 8 below for further details) rC10
(ii) CRIMINAL CONDUCT, other than minor criminal conduct; gC25.3
(1) Minor criminal conduct includes:
[a] An offence committed in the UK which is a FIXED
PENALTY OFFENCE under RTOA 1988
[b] An offence committed in the UK or abroad which is
dealt with by a procedure similar to that for a fixed
penalty offence.
[c] An offence whose main ingredient is the unlawful
parking of a motor vehicle.
(iii) Seriously OFFENSIVE or DISCREDITABLE conduct towards 3 rd gC25.4
parties;

29
 (iv) DISHONESTY; gC25.5
(v) Unlawful VICTIMISATION OR HARASSMENT;
(vi) ABUSE of your professional position gC25.7
(1) Abuse of your professional position includes referring to gC26
your status as a barrister in a context where it is irrelevant,
e.g. in a private dispute.
(b) CONDUCT WHICH IS NOT LIKELY to be treated as a breach of CDs 3 or 5 gC27
includes (but is not limited to):
(i) MINOR criminal offences
(ii) Conduct in your PRIVATE OR PERSONAL LIFE, unless this involves:
(iii) Abuse of your professional position; or
(c) Committing a criminal offence, OTHER than a minor criminal offence.
8 Referral Fees
(a) Making or receiving payments for referral fees is inconsistent with your gC29
duties under CDs 2, 3, 4 and may also breach CD5.
(b) However, the rules on referral fees do NOT prohibit proper expenses gC31
that are not a reward for referring work, such as payments for:
(i) Clerking and administrative services (including where these are
outsourced);
(ii) Membership subscriptions to ADR bodies that appoint or
recommend mediators, arbitrators or adjudicators.
(iii) Advertising or publicity, which are payable irrespective of whether
any work is referred or not.
(c) The Guidance on Referral and Marketing Arrangements for Barristers
Permitted by the BSB document deals extensively with the issue of
referral fees. It sets out a number of features which the BSB will
consider when determining whether a payment by a barrister to a 3 rd
party making a referral, or acting as an introducer, or providing
administrative or marketing services will constitute a prohibited
referral fee.
(i) Features that WILL indicate that the payment is a prohibited
referral fee:
(1) The payment amounts to the offence of bribery under the
Bribery Act 2010;
(2) The payment is made in connection with a personal injury
work AND is prohibited by LASPO 2012.
(ii) Features which are LIKELY TO indicate that the payment is a
prohibited referral fee:

30
 (1) The payment is made to a professional person acting for the
lay client who has a duty to act in the best interests of that
client when making a referral;
(2) The payment to an introducer is linked to specific referrals;
(3) The payment to an introducer for services provided by the
barrister is not a set fee but is linked to the number of
referrals;
(4) In a publicly funded case, the fee paid to an instructed
barrister is less than the Legal Aid Agency fee for those
advocacy services;
(5) The payment is a condition of receiving a referral;
(6) A payment for marketing or related services is higher than
market rates.
(iii) Features which MAY suggest that the payment is not a referral
fee:
(1) The payment is made to an employee or agent of the
barrister making the payment, e.g. a clerk or an outsourced
clerking service, in return for the services they provide to
the barrister and not for onward payment to any person
who refers work to the barrister;
(2) The payment is made to a marketing or advertising agency
and the amount does not depend on whether any
instructions are received or on the value of any instructions
received;
(3) The payment is made to an introducer who is not an
authorised person or other professional person for the
purpose of being included in a list of providers of legal
services and the amount is not dependent on the number of
referrals received from that introducer.
(iv) Remember that a payment for these purposes includes not only
financial payments but also PAYMENTS IN KIND such as providing
services or facilities at reduced or no cost.
9 Foreign Work
(a) In connection with any foreign work which you undertake you must rC13
comply with any applicable rule of conduct prescribed by the law or by
any national or local Bar, UNLESS such rule is INCONSISTENT with any
requirement of the CORE DUTIES.
(b) If you solicit any work outside of England and Wales, you must not do rC14
so in a manner which would be prohibited by the Handbook.

31
Chapter 5: CD 8

CD 8 You must NOT DISCRIMINATE unlawfully against any person

1 Duty not to Discriminate
(a) You must not discriminate unlawfully against, victimise or harass any rC12
other person on the grounds of:
(i) Race, Chapter 6
(ii) Colour,
(iii) Ethnic or national origin,
(iv) Nationality,
(v) Citizenship,
(vi) Sex,
(vii) Gender reassignment,
(viii) Sexual orientation,
(ix) Marital or civil partnership status,
(x) Disability,
(xi) Age,
(xii) Religion or belief,
(xiii) Pregnancy or maternity.
(b) The grounds set out above are known as “protected characteristics”
(c) The BSB Handbook Equality Rules provides definitions of some of the
key concepts involved in the discrimination rules and explains when
and where they apply to barristers’ practices. It also sets out those
parts of the Equality Act 2010 which relate specifically to the Bar.
(d) N.B. for the purposes of the Assessment you do NOT need to know the
specific provisions or section numbers of the Act itself.
2 Application of the Duty
(a) The requirement not to discriminate applies to ALL BARRISTERS in ALL
ASPECTS OF HIS OR HER PROFESSIONAL LIFE. The requirement applies
to a barrister’s relationship with “any other person” in the course of his
or her professional dealings.
(b) The requirements may be interpreted as covering the following
relationships:
(i) Clerks and other chambers’ staff;
(ii) Clients;
(iii) Instructing solicitors and their staff;

32
 (iv) Court staff;
(v) Judges;
(vi) Other barristers;
(vii) Pupils.
(c) Discrimination is prohibited in two main areas:
(i) EMPLOYMENT;
(ii) SERVICE DELIVERY; (but age and marriage/civil partnership
characteristics are excluded under this head).
(d) Barristers and their clerks are specifically covered by the legislation in
the following areas:
(i) The arrangements for RECRUITING tenants and pupils;
(ii) The TERMS on which tenancy or pupillage is OFFERED;
(iii) The TERMS on which pupils or tenants are RETAINED;
(iv) The way in which pupils or tenants are afforded ACCESS TO
OPPORTUNITIES for training or gaining experience or for receiving
any other benefit, facility or service;
(v) The TERMINATION of tenancy or pupillage;
(vi) The HARASSMENT of pupils or tenants;
(vii) The VICTIMISATION of pupils or tenants;
(viii) ANY DISCRIMINATION against barristers including victimisation or
harassment.
3 Key Types of Discrimination
(a) The main categories of unlawful discrimination are:
(i) DIRECT DISCRIMINATION:
(1) Occurs when a person treats another LESS FAVOURABLY
than they would treat others because of a PROTECTED
CHARACTERISTIC;
(2) Direct discrimination can NEVER be justified (with some very
limited exceptions which are not relevant here);
(3) Discrimination can be based on a FALSE PERCEPTION. Thus,
if a person discriminates against another because he
mistakenly believes that person is gay, it remains
discrimination even though the belief is incorrect.
(ii) INDIRECT DISCRIMINATION
(1) Occurs where an apparently NEUTRAL PROVISION, criterion
or practice has or would have a DISADVANTAGEOUS IMPACT
upon a particular group compared with others.

33
 (2) Indirect discrimination CAN be justified if it is a
PROPORTIONATE MEANS OF ACHIEVING A LEGITIMATE AIM.
(b) REASONABLE ADJUSTMENTS
(i) Where a provision, criterion, physical feature or practice puts a
DISABLED person at a substantial disadvantage in comparison
with non-disabled people, then there is a duty to take
REASONABLE STEPS to avoid the disadvantage.
(c) HARASSMENT:
(i) Is any form of unwanted conduct related to a PROTECTED
CHARACTERISTIC which has the effect or purpose of VIOLATING A
PERSON’S DIGNITY, or creating an intimidating, hostile, degrading,
humiliating or offensive environment.
(ii) A single incident may constitute harassment if sufficiently serious.
(iii) The motive or intention of the perpetrator may be (but is not
necessarily) relevant.
(iv) Harassment can constitute a criminal offence.
(d) VICTIMISATION
(i) A person victimises another person if s/he subjects that person to
a DETRIMENT because s/he believes that person has done or is
about to do a PROTECTED ACT, such as:
(1) Giving evidence in proceedings relating to discrimination;
(2) Bringing proceedings relating to discrimination;
(3) Making an allegation of discrimination.
4 Other Important Concepts
(a) Other relevant concepts for the purposes of the Equality Handbook are:
(i) POSITIVE ACTION
(1) This allows a person to take any step to encourage or enable
a group with a shared protected characteristic to overcome
or minimise any disadvantage or under-representation or
particular need.
(ii) DISCRIMINATION BY PEOPLE WITH THE SAME PROTECTED
CHARACTERISTIC
(1) Individuals with the same protected characteristic can
discriminate unlawfully against each other. Thus, a woman
can discriminate against another woman, and one Hindu
barrister can discriminate against another Hindu barrister.

34
 (2) NB: Unlawful discrimination must be based on a protected
characteristic. It is currently lawful for a member of a
political party to discriminate against members of other
parties, or for a City supporter to discriminate against a
United supporter, for example.
(iii) UNINTENTIONAL DISCRIMINATION
(1) A lack of intention to discriminate is NOT a defence to any
allegation or claim of discrimination (including harassment
or victimisation).
5 Discrimination in respect of Service Provision
(a) In relation to service provision it is unlawful to discriminate against
someone by:
(i) Refusing or deliberately omitting to provide them with the
service;
(ii) Refusing or deliberately omitting to provide them with services of
the same or similar quality or standard; or
(iii) Refusing or deliberately omitting to provide them with services
on the same terms as would otherwise be provided.
(b) The duty not to discriminate in service provision applies to all aspects
of services provided by an individual barrister including, but not limited
to:
(i) Accepting instructions;
(ii) Advising in writing or in conference;
(iii) Providing representation at hearings.
(c) The duty also applies in relation to other services provided by a
barrister or Chambers, e.g. if Chambers hires out conference rooms it
would be unlawful to discriminate against those who use this service.
(d) There is an additional duty to make reasonable adjustments to enable
disabled people to make use of a service, e.g. ensuring that parts of
Chambers are wheelchair accessible to allow clients in wheelchairs to
attend for conferences.

35
Chapter 6: CD 9

CD 9 You must be OPEN and CO-OPERATIVE with your REGULATOR

1 Self-Reporting to the BSB
(a) You must report promptly to the BSB if: rC65
(i) You are CHARGED with an INDICTABLE OFFENCE in England and
Wales or with a criminal offence of comparable seriousness in any
other jurisdiction;
(ii) You are CONVICTED of or CAUTIONED for ANY criminal offence in
any jurisdiction other than a minor offence (see footnote 7)
(1) You are not obliged to disclose SPENT convictions under this gC94.1
rule, BUT you cannot wait until a conviction becomes spent
to avoid disclosing it to the BSB. Therefore, unless the
conviction is immediately spent you must declare it to the
BSB upon being sentenced.
(2) The SPENT convictions rule does not apply when you are
asked a question related to:
[a] your SUITABILITY FOR ADMISSION to the profession,
AND you are told that spent convictions are to be
disclosed; or
[b] the DISMISSAL or EXCLUSION of any person from the
profession.
(iii) You have committed SERIOUS MISCONDUCT; (See 6.4. below for a
non-exhaustive list of examples of ‘serious misconduct’)
(iv) You become the subject of any DISCIPLINARY or other
REGULATORY or ENFORCEMENT action by another regulator;
(v) Any of the following occur:
(1) BANKRUPTCY proceedings are initiated against you;
(2) DIRECTORS DISQUALIFICATION proceedings are initiated
against you;
(3) You have made a composition or arrangement with your
creditors;
(4) WINDING UP proceedings are initiated in respect of against
you;
(5) An administrator, administrative receiver, receiver or
liquidator is appointed in respect of you;
(6) ADMINISTRATION PROCEEDINGS are initiated in respect of
you;

36
 (vi) You become authorised to practice by another approved
regulator.
2 Reporting another Barrister to the BSB
(a) You must never make or threaten to make a report of serious rC67
misconduct to the BSB about another barrister WITHOUT A GENUINE
AND REASONABLY HELD BELIEF that there has been serious misconduct
by that barrister.
(i) Examples might include reporting or threatening to report a gC96
barrister as a litigation tactic or merely to please a client or any
other person.
(b) Subject to the rule above and your duty under CD 6, you MUST report rC66
to the BSB if you have reasonable grounds to believe that there has
been SERIOUS MISCONDUCT by a barrister.
(i) SERIOUS MISCONDUCT includes: gC96
(1) DISHONESTY;
(2) ASSAULT or HARASSMENT;
(3) Seeking to gain ACCESS without consent to CONFIDENTIAL
INFORMATION relating to the opposing party’s case
(including instructions);
(4) Seeking to gain access without consent to confidential
information relating to another member of chambers,
member of staff or pupil;
(5) Encouraging a witness to give evidence which is
UNTRUTHFUL or MISLEADING;
(6) Knowingly or recklessly MISLEADING THE COURT or an
opponent (or any attempt to do so);
(7) Being DRUNK or under the influence of DRUGS in court;
(8) Failure by a barrister to report promptly to the BSB under
the rules in paragraph 1(a)(v) above;
(9) Conduct that poses a SERIOUS RISK TO THE PUBLIC;
[a] Depending on its severity, DISCRIMINATION can
constitute serious misconduct.
(c) Before making a report you should carefully consider all of the gC97
circumstances including:
(i) Whether the barrister’s INSTRUCTIONS OR OTHER CONFIDENTIAL
MATTERS might have a bearing on the assessment of their
conduct;
(ii) Whether the barrister has been offered THE OPPORTUNITY TO
EXPLAIN THEIR CONDUCT, and if not, why not;

37
 (iii) ANY EXPLANATION which has been or could have been offered;
(iv) Whether the matter has been, or will be, RAISED IN THE
LITIGATION IN WHICH IT OCCURRED, and if not, why not.
(d) Having considered all the circumstances, including those above, you gC98
MUST make a report IF you have before you material which
ESTABLISHES A REASONABLY CREDIBLE CASE OF SERIOUS MISCONDUCT.
(e) The BSB Guidance on Reporting Serious Misconduct of Others states
that if, having considered all of the circumstances, you remain unsure
as to whether or not there has been serious misconduct, you should err
on the side of caution and make a report to the BSB.
(f) In making the decision about whether conduct amounts to serious
misconduct, or whether to make a report at all (particularly where you
are the victim of the serious misconduct), you are encouraged to
contact the Bar Council’s Ethical Queries Helpline.
(g) Pupil barristers and new entrants to the profession are encouraged to
discuss any concerns they have in reporting serious misconduct with
relevant colleagues, pupil supervisor or head of chambers.
(h) You are NOT under a duty to make a report of serious misconduct if: rC68
(i) The circumstances which give rise to your belief come from
MATTERS ALREADY IN THE PUBLIC DOMAIN and you reasonably
consider that the FACTS WILL HAVE COME TO THE ATTENTION OF
THE BSB;
(ii) THE MATTER HAS ALREADY BEEN REPORTED TO THE BSB by the
barrister concerned;
(iii) DISCLOSURE WOULD BREACH THE LEGAL PROFESSIONAL
PRIVILEGE of the person who has committed the misconduct;
(iv) You become aware of the serious misconduct as a result of your
work on a BAR COUNCIL ADVICE LINE.
(i) You must not VICTIMISE anyone for making a report rC69
(j) Misconduct which falls short of Serious Misconduct must nonetheless gC102
be reported to your Head of Chambers or equivalent person.
3 Providing Information to the BSB
(a) You MUST promptly provide all such information to the BSB as it may rC64.1
from time to time require of you, and notify it of any material changes
to that information.

38
 (b) Privileged Information
(i) This rule does not require you to disclose any material to the BSB gC93
which is subject to YOUR OWN legal privilege (such as legal advice
you have received about your own position).
(ii) Information over which YOUR CLIENT holds privilege MAY be
caught by this rule. You are NOT entitled to disclose such
privileged information without the client’s consent. You may
enquire whether your client is prepared to waive privilege, BUT
you should be aware that you may have a CONFLICT OF INTEREST
in giving the client advice as to whether he should or should not
waive privilege.
(iii) In deciding whether there has been a breach o frC64.1 the BSB
will bear in mind that a client MIGHT have been prepared to
waive privilege if asked.
4 Compliance with BSB decisions and sanctions
(a) You MUST comply in due time with any decision or sentence imposed rC64.2
by the BSB, a disciplinary panel or tribunal.
5 BSB access to Premises and Documents rC70
(a) You must permit the Bar Council or the BSB reasonable ACCESS TO:
(i) Any PREMISES from which you provide legal services; and
(ii) Any DOCUMENTS OR RECORDS relating to those premises and
your practice.
(b) The Bar Council and the BSB shall be entitled to take copies of any
documents or records as required by them.
6 The Legal Ombudsman
(a) You must give the LEGAL OMBUDSMAN all reasonable ASSISTANCE rC71
requested of you in connection with the investigation of any complaint
under the Ombudsman scheme.
7 Ceasing to Practise rC72
(a) Once you are aware that you will CEASE to PRACTISE you must wind-
down your practice in an orderly way, including:
(i) INFORMING THE BSB and providing a contact address;
(ii) NOTIFYING ANY CURRENT CLIENTS and making suitable
arrangements with them in respect of any ongoing matters;
(iii) PROVIDING SUCH INFORMATION about the winding down of your
practice as the BSB may require.
gC114

39
(b) The Handbook reminds barristers that claims under their
professional indemnity insurance can be made many years after the
work was undertaken. Consequently, on ceasing to practise they should
bear in mind the need to arrange run-off cover with BMIF.

40
Notes

41
Chapter 7: CD 10

1. CD 10 You must take reasonable steps to MANAGE YOUR PRACTICE…

COMPETENTLY and in such a way as to achieve compliance with your legal and
regulatory obligations
1 The scope of the Duty
(a) You must take reasonable steps to ensure that:
(i) Your practice is EFFICIENTLY and PROPERLY ADMINISTERED; and rC87
(ii) PROPER RECORDS of your practice are kept.
2 Record Keeping
(a) You MUST: rC88
(i) Ensure that adequate records supporting fees charged or claimed
in a case are kept until the later of the following:
(1) Your fees have been paid; and
(2) Any assessment of costs in the case has been completed and
the time for lodging an appeal against that assessment has
expired without an appeal being lodged, or any such appeal
has been finally determined.
(ii) Provide your client with records or details of work that you have
done as may be reasonably required for verifying your charges.
3 Insurance
(a) You must: rC76
(i) Ensure that you have ADEQUATE INSURANCE (taking into account
the nature of your practice) which covers ALL legal services you
supply to the public;
(ii) Comply with any notice issued by the BSB which stipulates a
minimum level of insurance and/or minimum terms for the
insurance (including any time specified for meeting such
requirements).
(b) When acting as a self-employed barrister you MUST be a Bar Mutual rC77
Indemnity Fund (‘BMIF’) member unless:
(i) You are a pupil who is covered by your pupil supervisor’s
insurance;
(c) As a member of BMIF you must: rC78
(i) Pay your insurance premium promptly;
(ii) Supply such information as BMIF may require of you.

42
4 Handling Client Money
(a) A barrister in private practice must NOT RECEIVE, CONTROL or HANDLE rC73
client money, apart from what the client pays you FOR YOUR SERVICES.
(i) This rule applies to anyone acting on your behalf. gC103
(ii) The rule prohibits you from holding client money or other assets gC103
yourself, or through any agent, third party or nominee.
(iii) A fixed FEE PAID IN ADVANCE is NOT client money for the gC106
purposes of this rule.
(iv) If you decide to request an ‘upfront’ fixed fee from a prospective gC107
client before agreeing to work on their behalf you should first
have regard to the following principles:
(1) You should accurately estimate the likely time commitment
and only take payment when you are satisfied that:
[a] It is a reasonable payment for the work being done;
[b] In a public access case, that it is suitable for you to
take the case.
(2) If the amount of work required is unclear, you should
consider staged payments;
(3) You should not accept an ‘upfront’ fee in advance before
considering whether you have sufficient
experience/expertise to do the case and whether you can
complete the work in a reasonable timeframe.
(4) If the client gives informed consent, you may take an
‘upfront’ fixed fee in advance on the basis that you will
return any outstanding money if the actual fee is lower than
the upfront fee because e.g. not as much work needed to be
done as originally anticipated.
(5) However, any such arrangement must be reduced to writing
before the fee is paid
(6) It must be made clear to the client that in the circumstances
any difference between the fixed fee and the eventual fee is
NOT being held on trust for the client.
5 Associations
(a) An ASSOCIATION is defined as:
(i) Practising barristers, second six pupils and registered European
lawyers practising as a CHAMBERS, or
(ii) Any of such people sharing premises and/or costs and/or using a
common vehicle for obtaining or distributing work with any
person OTHER THAN a BSB regulated person.

43
 (1) The definition includes: barristers, registered European
lawyers, solicitors, BSB authorised bodies, managers of BSB
authorised bodies, legal executives, patent attorney, law
costs draftsmen and licensed conveyancers
(b) You MUST NOT do anything as part of an association, which you are rC79
otherwise PROHIBITED from doing.
(i) You MUST NOT act in an association with a person where by doing gC119
so you may reasonably be considered to be bringing the
profession into DISREPUTE contrary to CD 5.
(c) If you are part of an association on more than a one off basis you must rC80
NOTIFY THE BSB and provide such details as they may require.
(d) As a member of chambers you are not responsible for the conduct of gC127
other members. HOWEVER, your chambers constitution should be
drafted to allow for the EXCLUSION of members whose CONDUCT is
reasonably considered to have DIMINISHED THE TRUST placed in the
profession by the public.
6 Making and Receiving Referrals
(a) If you have a material commercial interest in an organisation to which rC81
you plan to refer a client, you must:
(i) Tell the client in writing about your interest;
(ii) Keep a record of the referral for review by the BSB.
(b) You should only make such a referral when it is in the client’s best gC124
interests.
(c) If you have a material commercial interest in an organisation which is rC82
proposing to refer a matter to you:
(i) Paragraph 6(a) above applies.
In addition, you MUST
(ii) Make a clear agreement with the organisation about how
conflicts of interest etc. will be dealt with.
(d) “Material commercial interest” means an interest which an objective rC85
observer would reasonably consider MIGHT POTENTIALLY INFLUENCE
YOUR JUDGMENT.
(e) If you refer a client to a 3rd party which is not regulated by the BSB or rC83
another legal regulator (e.g. the Law Society) you must ensure that the
client is not misled into believing that the 3 rd party is subject to
regulation.
rC84

44
 (f) You must not have a material commercial interest in an organisation
which gives the impression of being regulated by the BSB or another
approved regulator, or could be perceived as being so regulated, when
it is not.
7 Outsourcing
(a) Where you outsource services to a 3rd party that are critical to the rC86
delivery of legal services supplied by you:
(i) Any outsourcing does NOT ALTER YOUR OBLIGATIONS to the
client;
(ii) You remain RESPONSIBLE FOR COMPLIANCE with the Handbook;
(iii) You must ensure any outsourcing contractual agreement contains:
(1) CONFIDENTIALTY obligations similar to those placed on you
by the Handbook
(2) Compliance with any obligations under the Code of Conduct
relevant to the outsourcing;
(3) PERSONAL DATA is processed in accordance with your
instructions and the Data Protection Act;
(4) Provision for the BSB or its agent to obtain information
from, inspect the records (including electronic records) of,
or enter the premises of such third party in relation to the
outsourced activities or functions.
(b) This rule applies to outsourcing of clerking services. gC127
(c) The rule does NOT apply to instructing a pupil or a devil to undertake gC129
work for you.
8 Handling Confidential Information
(a) The BSB’s Confidentiality Guidance focuses on the handling of
confidential client information, including all communications with
clients (which are of course privileged in any event) and confidential
financial data belonging to members of chambers. The guidance states:
(i) Chambers must have APPROPRIATE SYSTEMS in place for looking
after confidential information.
(ii) Barristers should seek to LIMIT THE RISK of casual or deliberate
UNAUTHORISED ACCESS to confidential information.
(iii) Arrangements put in place should cover:
(1) Handling and storage of confidential information (e.g.
password protecting computers and not leaving papers
where others can read them).
(2) Suitable protocols for distributing papers and sending faxes
and emails.

45
(iv) Particular care to be taken when using laptops, tablets, memory
sticks etc. Devices should only be used to store info needed for
IMMEDIATE BUSINESS PURPOSES. Information stored should be at
least PASSWORD PROTECTED and preferably ENCRYPTED. Great
care should be taken to ensure they are not lost or stolen.
(v) When no longer required, confidential material must be
DISPOSED OF SECURELY.
(vi) Additional safeguards will be required when dealing with
particularly sensitive information or for cases where counsel from
the same chambers are instructed on opposing sides.

46
Notes

47
Chapter 8: Scope of Practice

1 Capacities in which you MAY act

(a) You may only carry our reserved legal activities or supply other legal rS16
services in the following capacities:
(i) As a self-employed barrister;
(ii) As an employed barrister;
(iii) In one of the other capacities listed in rS16 of the Handbook.
(b) The definition of reserved legal activities includes:
(i) Exercising rights of audience
(ii) Conducting litigation
(iii) Probate activities
(iv) Notarial activities
(v) Administration of oaths
(vi) Reserved instrument activities
(1) ‘Reserved instrument activities’ essentially means preparing
documents for transferring land.
2 Pupil Barristers
(a) If you are a second six pupil - i.e. a pupil who has completed or been rS19
exempted from the non-practising six months (“first six”) of pupillage -
you may ONLY supply legal services to the public, or exercise any right
which you have by reason of being a barrister, if you have the
PERMISSION of your pupil-supervisor or head of chambers.
3 Barristers of less than 3 years standing
(a) A barrister of LESS than 3 years standing MAY ONLY SUPPLY LEGAL rS20
SERVICES to the public or EXERCISE ANY RIGHT OF AUDIENCE, or
CONDUCT LITIGATION if their principal place of practice is either:
(i) A chambers which is also the principal place of practice of a
RELEVANT QUALIFIED PERSON (“RQP”) who is readily available to
provide guidance to you; or
(ii) An office of an organisation of which an employee, partner,
manager or director is a RQP who is readily available to provide
guidance to you.

48
 (b) Standing
(i) “years standing” is calculated from the date on which the person
began practising as a barrister (NOT including any period of
pupillage). Thus, a person who successfully completed 12 months
pupillage on 2nd January 2016 and began practising as a barrister
on the next day would be of 3 years’ standing on 3rd January
2019.
(ii) During that time the barrister must have been entitled to practise
as a Barrister, have made such practice their primary occupation,
and have been entitled to exercise a right of audience before
every court in relation to all proceedings.
(c) Relevant Qualified Person rS22
(i) For SUPPLYING LEGAL SERVICES, a person shall be a qualified
person if he:
(1) Has been entitled to and has PRACTISED AS A BARRISTER
(other than as a pupil) for at least 6 OF THE PREVIOUS 8
YEARS; and
(2) Has made such practice his PRIMARY OCCUPATION for the
PREVIOUS 2 YEARS; and
(3) Is NOT acting as a qualified person in relation to MORE
THAN 2 OTHER PEOPLE; and
(4) Has not been designated by the BSB as UNSUITABLE to be a
qualified person.
(ii) For EXERCISING A RIGHT OF AUDIENCE, a person shall be a
qualified person if he:
(1) Complies with (i) above; and
(2) has been entitled to EXERCISE A RIGHT OF AUDIENCE before
EVERY court in relation to all proceedings for the PREVIOUS
2 YEARS.
(iii) For EXERCISING A RIGHT TO CONDUCT LITIGATION, a person shall
be a qualified person if he:
(1) Complies with (i) above; and
(2) Is entitled to exercise a right TO CONDUCT LITIGATION
before EVERY court in relation to all proceedings.
4 Self-Employed Barristers
(a) You may only supply legal services if you are APPOINTED BY THE COURT rS24
or instructed:
(i) By a PROFESIONAL CLIENT (who may be an employee of the
client); or
(ii) By a LICENSED ACCESS CLIENT; or

49
 (iii) by or on behalf of ANY OTHER CLIENT, provided that:
(1) the matter is PUBLIC ACCESS and:
[a] you are entitled to carry out public access work; and
[b] you have notified the BSB that you are willing to
accept instructions from lay clients; and
[c] you comply with the public access rules; OR
(2) the matter relates to the CONDUCT OF LITIGATION and
[a] you have a litigation extension to your practising
certificate; and
[b] you have notified the BSB that you are willing to
accept instructions from lay clients.
(b) You must NOT in the course of your practice undertake the rS29
MANAGEMENT, ADMINISTRATION OR GENERAL CONDUCT of a client’s
affairs.
(i) This prohibition does not apply to certain work done outside rS30
England and Wales
5 Employed Barristers
(a) You may only supply legal services to the following people: rS39
(i) Your employer;
(ii) Any employee, director or company secretary of your employer in
a matter relating to that person’s employment;
(iii) If you are employed by a government department or agency, any
Minister or Officer of the Crown;
(iv) If you are employed by a trade association; any individual
member of the association;
(v) If you are a Justices’ Clerk, the Justices whom you serve;
(vi) If you are employed by the Legal Aid Agency, members of the
public;
(vii) If you are employed by a Legal Advice Centre, clients of the
Centre.
(viii) If you supply legal services free of charge, members of the public;
(ix) If your employer is a public authority (A), another public authority
(B) on behalf of which A has made statutory arrangements or
otherwise to supply any legal services or to perform any of B’s
functions as agents or otherwise.
gS8A-C

50
(b) Barristers providing services through a non-authorised body whose
purpose is to facilitate the supply of in-house legal services to another
non-authorised body, authorised body or clients of an authorised body,
do not need to obtain waivers from rS39. Where services are being
provided to clients of an authorised body, those services must be
provided by the authorised body and regulated by an approved
regulator under the Legal Services Act 2007 (LSA) eg the Solicitors
Regulation Authority.

51
6 Legal Advice Centres
(a) You may supply legal services at a Legal Advice Centre (LAC) on a rS41
voluntary or part-time basis.
(b) In doing so you will be treated for the purposes of the Handbook as if
you were employed by the LAC.
(c) If you supply legal services at a LAC to clients you MUST: rS42
(i) Not in any way receive any fee or reward for the services you
supply to clients at the LAC, EXCEPT a salary paid by the LAC.
(ii) Ensure that any fees in respect of legal services supplied by you to
any client of the LAC are paid to the LAC, or to the Access to
Justice Foundation, or another approved charity
(1) An approved charity is one prescribed by the Lord
Chancellor under s.194(8) of the LSA 2007
(iii) NOT have any financial interest in the LAC.
(d) You may provide legal services at a LAC on an UNPAID basis irrespective gS9
of the capacity in which you normally work.
(e) If you are a self-employed barrister, you do NOT need to inform the BSB gS10
that you are working for a LAC.
7 Transparency Rules on Price, Service and Redress

(a) In July 2019, the BSB introduced new mandatory rules on price, service and
redress transparency and are designed to improve the information available
to the public before they engage the services of a barrister, and follow
recommendations from the Competition and Markets Authority that legal
regulators should introduce new requirements in this area.

(b) The rules require that all self-employed barristers, chambers and BSB- rC159
regulated entities to publish specified information about their services,
including which types of legal service they provide, their most commonly
used pricing models and details of their clients’ rights of redress.

(c) As set out in the BSB’s price transparency policy statement, Public Access rC164
barristers providing certain types of services are also required to publish
additional price and service information. The BSB has also published
Transparency Standards Guidance to help the profession comply with the
new rules.

52
Chapter 9: Practising Certificate Rules

1 Eligibility for a Practising Certificate

(a) You are eligible for a PRACTISING CERTIFICATE if you are a BARRISTER rS45
and you are not currently SUSPENDED from practice and have NOT
been DISBARRED; and
(b) You meet the requirements in rS46 (below) and you have EITHER:
(i) held a practising certificate within the last 5 years; or,
(ii) satisfactorily completed (or been exempted from) 12 months of
pupillage within the last five years; or
(iii) satisfactorily completed the non-practising period of 6 months
pupillage (first-six) ; or;
(1) In this case you would only be eligible for a Provision
Practising Certificate
(iv) If none of the above, you have complied with such training as may
be required by the BSB.
2 Full Practising Certificates
(a) You are eligible for a FULL PRACTISING CERTIFCATE if either: rS46.1
(i) You have satisfactorily completed 12 months pupillage; or
(ii) You have been exempted from completing 12 months pupillage;
3 Provisional Practising Certificates
(a) You are eligible for a PROVISIONAL PRACTISING CERTIFICATE if you have rS46.2
completed or been exempted from first 6 pupillage and at the time you
apply for a provisional practising certificate you are registered as a
pupil.
4 Litigation Extensions
(a) You are eligible for a LITIGATION EXTENSION: rS47
(b) Where you have been or are due to be granted a FULL practising
certificate: and
(c) Where you are:
(i) More than 3 years standing; or
(ii) Less than 3 years standing but you can be supervised by a
Relevant Qualified Person (3(c)(iii) above);
(d) You have the relevant ADMINISTRATIVE SYSTEMS in place to be able to
provide legal services direct to clients and to administer the conduct of
litigation; and

53
 (e) You have the PROCEDURAL KNOWLEDGE to enable you to conduct
litigation competently.
(f) You do not require a Litigation Extension before conducting litigation if
you are a barrister employed by the CPS or a Government barrister
employed by the Treasury Solicitors. However, you will not be
authorised to conduct litigation outside your employment by one of
these bodies (e.g. if you undertake work in a Legal Advice Centre),
without obtaining a litigation extension.
5 Guidance on Practising Certificates for Pupils and Newly Qualified Barristers
(a) BSB Guidance on Practising Certificates for Pupils and Newly Qualified
Barristers was reissued in January 2019.
(b) On Completing a Non-Practising Period of pupillage
(i) You cannot conduct or undertake reserved legal activities in your
second six until you have a PROVISIONAL PRACTISING
CERTIFICATE. This includes exercising rights of audience.
(ii) To obtain a PROVISIONAL PRACTISING CERTIFICATE you must:
(1) Complete the Non-Practising period;
(2) Submit a certificate of completion of the non-practising
period to the BSB;
[a] This should be signed by the Pupil Supervisor
[b] If the Pupil Supervisor is unavailable it may be signed
by the Head of Chambers or Director of Pupil Training
instead
[c] If the Pupil Supervisor is happy to sign the certificate
early, it should be submitted a week in advance
(3) Register a Practising Period of Pupillage with the BSB
(iii) Once the BSB has received these forms you will be sent an email
confirming that you are authorised to perform reserved legal
activities and the effective date of that authorisation. You will
then be issued with a Provisional Practising Certificate.
(iv) You do not need to wait until you have received a physical
Provisional Practising Certificate provided you have received the
email from the BSB and you do not perform any reserved legal
activity before the effective date of authorisation.
(c) On Completing a Practising Period of Pupillage
(i) A Provisional Practising Certificate is valid for 30 days beyond the
completion of your Practising Period.
(ii) You can apply for an extension of your Provisional Practising
Certificate if necessary.

54
 (iii) Your Provisional Practising Certificate only allows you to carry out
reserved legal activities with the PERMISSION of your pupil-
supervisor or head of chambers. If such permission is withdrawn
at any time your Provisional Practising Certificate will cease to be
valid.
(d) “Third Six”
(i) A “third six” is not covered by a Provisional Practising Certificate.
You will need a Full Practising Certificate to commence a third six
period.
(e) To obtain a FULL PRACTISING CERTIFICATE you must:
(i) Complete a Practising Period;
(ii) Submit a certificate of completion the BSB;
(iii) Submit your pupillage checklist and a completed Records form.
(iv) If satisfied, the BSB will issue a Full Qualification Certificate
(f) Application for a Practising Certificate
(i) You may apply for a practising certificate by: rS48
(1) Completing the relevant application form
[a] This is now an online application using the ‘MyBar’
system;
(2) Submitting such information in support of the application as
the BSB may require;
(3) Paying the appropriate practising certificate fee.
(g) Application for a Litigation Extension
(i) You may apply for a litigation extension to a practising certificate rS49
by:
(1) Completing the application form and sending it to the BSB;
(2) Confirming that you have or are due to be granted a
practising certificate;
(3) Paying the application fee and the litigation extension fee;
(4) Confirming in such form as the BSB may require from time
to time that you meet the requirements for administrative
systems and procedural knowledge.
6 Miscellaneous Rules about Applications
(a) The BSB may require from the applicant or a 3rd party such additional rS50 and 51
information, documents or references as it considers appropriate.
rS52

55
(b) You are PERSONALLY RESPONSIBLE for the application and any
accompanying information submitted to the Bar Council. You must not
submit information which you do not believe is FULL and ACCURATE.
(c) You may apply for a reduction in the fee for your practising certificate if
your gross fee income is less than the amount determined by the Bar
Council.

56
Chapter 10: The CPD Rules

1 Continuing Professional Development

(a) Continuing Professional Development is work undertaken over and rQ130.2
above the normal commitments of a barrister with a view to
developing the barrister’s SKILLS, KNOWLEDGE and PROFESSIONAL
STANDARDS in areas relevant to their present or proposed area of
practice in order to keep the barrister up to date and maintain the
highest standards of professional practice.
2 New Practitioner Programme
(a) Any barrister who starts practice on or after 1 October 2001 MUST rQ132
during the first 3 calendar years in which the barrister holds a
practising certificate after any pupillage year COMPLETE A MINIMUM
OF 45 HOURS CPD.
(i) A calendar year begins on 1 January.
(ii) Example: If Dharma complete her pupillage on 1st September
2018 she will begin her New Practitioner Programme on 1 st
January 2019. She will therefore need to complete the 45 hours
CPD by 31st December 2022.
3 Established Practitioner Programme
(a) Any barrister who has completed the New Practitioner Programme and rQ133
who holds a practising certificate MUST UNDERTAKE CPD IN EACH
CALENDAR YEAR.
(b) An EPP barrister MUST: rQ134
(i) PREPARE a written CPD PLAN, setting out learning objectives and
the types of CPD the barrister proposes to undertake;
(ii) KEEP a written record of the CPD activities undertaken;
(iii) KEEP a written record in the CPD plan of:
(1) The barrister’s reflection on the CPD he or she has
undertaken;
(2) Any variation in the barrister’s planned CPD activities; and
(3) The barrister’s assessment of his or her future learning
objectives.
(iv) RETAIN a record of the CPD plan and completed CPD activities for
3 years.
(v) SUBMIT to the BSB an annual DECLARATION OF COMPLETION of
CPD.

57
4 General provisions about CPD
(a) Both NPP and EPP barristers should have regard to the CPD Guidance gQ3 and 4
issues by the BSB which provides a structure that would represent good
practice for most barristers when considering their CPD requirements.
(b) For EPP barristers there is NO MINIMUM number of CPD hours which gQ4
must be completed in each calendar year. It is the responsibility of the
individual barrister to determine the CPD activities which will be
undertaken in order to meet the requirements of CPD.
(c) The BSB will ASSESS AND MONITOR compliance with CPD. gQ4
(d) Upon request by the BSB, a barrister MUST produce his or her CPD plan rQ135
and record of CPD activities for assessment.

58
Chapter 11: Public Access Work and Licensed Access Work

1 Public Access Work

(a) Public access work is work undertaken by a barrister on behalf of a lay
client who has NOT instructed a solicitor or other (legal) professional
client.
(b) Examples of the types of work that may be done in a public access case
are:
(i) Advocacy;
(ii) Drafting documents;
(iii) Advising in conference;
(iv) Representation in ADR proceedings (e.g. mediation or arbitration)
(v) Negotiating on behalf of the client;
(vi) Investigating and collecting evidence (but see 3.2. et seq. in Part 1
of the Revision Guide)
(vii) Corresponding on behalf of the client. On the condition that:
(1) Is it in the client’s best interests to do so; and
(2) You have in place adequate systems, experience and
resources in place for managing correspondence.
2 Rules about accepting a public access case
(a) Subject to the requirements below a barrister may accept public access rC21.8
instructions in any area of practice in which he is SUFFICIENTLY
EXPERIENCED AND COMPETENT.
(b) Before accepting any public access work a barrister MUST have: rC120
(i) A full practising certificate (i.e. she must have successfully
completed pupillage;
(ii) Completed the appropriate public access training;
(iii) Registered with the BSB as a public access practitioner.
(iv) Taken all reasonably necessary steps to determine whether it rC121
would be in the client’s best interests, or the interests of justice,
for the client to instruct a solicitor;
(v) Taken all reasonably necessary steps to ensure that the client is rC120.3
able to make an informed choice about whether to apply for legal
aid or to proceed as a public access client.
(c) The duty NOT to WITHOLD your services applies to a public access case rC28
in exactly the same way as it does to any other case.
rC29

59
 (d) The ‘cab rank’ rule does NOT apply to public access cases
(i) This is because you are not being instructed by a professional
client,
(e) You must NOT REFUSE to take on a public access case for improper
reasons, which include:
(i) That the nature of the case is objectionable to you or the public; rC28
(ii) That the conduct, opinions, or beliefs of the client are
unacceptable to you or the public;
(iii) Any ground relating to the source of any financial support which
may properly be given to the client for the proceedings.
3 Duty to refuse instructions or withdraw from a public access case
(a) A barrister may NOT accept a public access case if it would be in the rC122
best interests of the client or in the interests of justice for the client to
instruct a solicitor.
(b) The duty not to accept public access work is an ongoing duty that rC123
continues throughout the case, Therefore if, at any time, the barrister
forms the view that it is in the client’s best interests or in the interests
of justice for the client to instruct a solicitor the barrister MUST:
(i) Inform the client of this view; and
(ii) Cease to act in the case unless the client instructs a solicitor.
(c) If the barrister has been instructed by an intermediary, he must give rC127
the same information to the intermediary as well as to the client.
(d) Where you are required to withdraw from a public access case in
circumstances which may prejudice the client’s position in the
proceedings you should provide such assistance to the client as is
proper to protect them, including:
(i) Applying to the court for an adjournment, if you have had to
withdraw during a hearing;
(ii) Drafting a letter for the client to send to the court and other side
seeking an adjournment of an impending hearing;
(iii) Providing a supporting letter for the client explaining that you
have had to withdraw for professional reasons and, without
breaching confidentiality, explaining those reasons;
(iv) Where the matter is urgent, contacting a solicitor who may be
willing to take on the client’s case.

60
4 Conducting Litigation in a Public Access Case
(a) As a public access barrister you MAY NOT conduct litigation UNLESS you
are duly authorised by the BSB. For these purposes conducting
litigation includes:
(i) Issuing proceedings or applications;
(ii) Acknowledging service of proceedings;
(iii) Giving your address as the address for service;
(iv) Filing documents at court, or serving documents on another
party; and
(v) Issuing notices of appeal.
(b) YOU MAY ADVISE clients how to take the steps listed in paragraph (a)
BUT THEY MUST COMPLETE THEM as litigants in person. If they are
unable to complete these steps, then the barrister MUST consider
whether it would be in the client’s best interests to instruct a solicitor
rather than continue with direct access instructions. Barristers s hould
be particularly careful in this regard when dealing with VULNERABLE
CLIENTS.
5 Duties upon accepting a Public Access case
(a) When a barrister accepts public access instructions he must write to rC125
the public access client clearly setting out the following:
(i) The work which the barrister has agreed to perform;
(ii) The fact that the barrister may be prevented from completing the
work by reason of his professional duties or conflicting
professional obligations, and what the client can expect in such
circumstances;
(iii) The fees, or the basis on which fees will be charged, for the work;
(iv) The barrister’s contact details;
(v) Information about the barrister’s complaints procedure;
(vi) The fact that the barrister is self-employed and not a member of
a firm;
(vii) The fact that the barrister will be subject to Parts 2 and 3 (Rules
on Public Access and Scope of Practice Rules) of the BSB
Handbook when carrying out the work;
(viii) Unless authorised to conduct litigation by the BSB, the fact that
the barrister cannot be expected to perform the functions of a
solicitor, in particular in relation to:
(1) Limitation; and
(2) Disclosure;
(ix) In any case where the barrister is instructed by an intermediary:

61
 (1) The fact that the barrister is independent of and has no
liability for the intermediary; and
(2) The fact that the intermediary is the agent of the lay client
and not the barrister.
(b) Except in exceptional circumstances the barrister will have complied rC126
with his duties under (a) if he sends the model letter for public access
clients provided on the BSB website.
6 Record Keeping and Retention of Documents
(a) A barrister who accepts public access instructions must keep a record rC128
of the case which includes:
(i) Name of the client;
(ii) Name of the case;
(iii) Any required time limits that the client has;
(iv) The agreed fee.
(v) The dates of:
(1) receipt and acceptance of the instructions;
(2) receipt of subsequent instructions;
(3) despatch of advices and other written work;
(4) conferences and telephone conferences;
(b) A barrister in a public access case must retain, or take reasonable steps rC129
to ensure that the client retains, for at least 7 years after the last item
of work done, the following:
(i) Copies of all instructions;
(ii) Copies of all advices and documents drafted (or approved);
(iii) The originals, copies or a list of all documents enclosed with any
instructions;
(iv) Notes of all advice given in conference or over the telephone.
(c) A barrister in a public access case may undertake correspondence
where it is ancillary to permitted work.
(d) Except where otherwise agreed a barrister: rC131
(i) SHALL be entitled to copy and retain all documents received from
the client;
(ii) SHALL return all documents received from his lay client on
demand, whether or not payment has been made by the client for
work done;
(iii) SHALL NOT be required to deliver to the client any documents
drafted by the barrister, before the client has paid for all work
done by the barrister;

62
 (iv) MAY, in a civil case, take a proof of evidence from his client in the
matter.
7 Barristers with less than 3 years’ standing
(a) A barrister with less than 3 years’ standing who has completed the rC121
necessary training must:
(i) Have a barrister who is SUITABLY QUALIFIED) AND is REGISTERED
as a public access practitioner with the Bar Council readily
available to provide guidance;
(ii) Maintain a log of public access cases they have dealt with,
including any issues or problems that have arisen.
(iii) Make the log available to the BSB on request;
(iv) Where appropriate seek feedback from their public access clients.
8 Supervising Immigration Advisers
(a) The BSB published revised Guidance for Barristers Supervising
Immigration Advisers in October 2018. What follows is a summary of
that guidance.
(i) Where you are acting as an immigration supervisor under the
Immigration and Asylum Act 1999 and providing legal services to
an immigration adviser or intermediary then you will be deemed
by the BSB to have a direct link with the lay client. This means you
will be PERSONALLY REPSONSIBLE for any immigration work
undertaken by the intermediary.
(ii) Barristers entering into these types of arrangements are
reminded that the PUBLIC ACCESS rules will apply when providing
legal services to the immigration adviser or other intermediary, or
to the immigration client.
(iii) You should therefore NOT act as an immigration supervisor if you
are not QUALIFIED and REGISTERED as a public access
practitioner.
(iv) You should NOT act as an immigration supervisor in relation to
any matter for which you do not have the necessary relevant
experience.
9 Licensed Access Work
(a) Licensed access work was originally intended to allow professional
firms such as engineers and architects to instruct barristers directly,
without the need to instruct a solicitor first. It was subsequently
expanded to allow any person who obtains a license from the BSB to so
instruct a barrister.
rC132

63
 (b) A self-employed barrister may accept instructions from a licensed
access client whether that client is acting for himself or another.
(c) The BSB will issue a license to an applicant where it is satisfied that the
applicant is a proper person to hold such a license.
(d) A barrister is only entitled to accept instructions from a licensed access rC134
client if at the time of giving instructions the client:
(i) Is identified; and
(ii) Sends the barrister a copy of the license issued by the BSB.
10 Circumstances where you MUST NOT accept or MUST return instructions in a
licensed access case
(a) A barrister must NOT accept instructions in a licensed access case: rC135
(i) UNLESS the barrister (and his chambers) are able to provide the
services required;
(ii) IF the barrister considers that it is IN THE LAY CLIENT’S BEST
INTERESTS, or in the interests of justice, THAT A SOLICITOR or
other authorised litigator BE INSTRUCTED either together with, or
in place of, the barrister.
(b) The duty above is an ongoing duty which applies to licensed access rC138
cases as it does to public access cases and similarly requires the
barrister to advise the client and withdraw unless the client instructs a
solicitor
11 Acceptance of Licensed Access Instructions
(a) A barrister may accept instructions from a licensed access client on: rC136 and
137
(i) Standard terms previously agreed in writing with the licensed
access client;
(ii) Individually negotiated terms
(b) If instructions are accepted on standard terms,
(i) the barrister must send to the client a statement in writing that
the instructions have been accepted on the relevant terms and
(ii) the barrister must keep a copy of the agreement in writing with
the licensed access client setting out the terms agreed and the
basis on which the barrister is to be paid
(c) If the a barrister accepts licensed access instructions on any other
terms, he must send to the client a copy of the agreement in writing
setting out the terms upon which he has agreed to do the work and the
basis upon which he is to be paid.
(d) In addition the barrister must make the client aware of the following
(either as part of standard terms or specifically):
(i) The circumstances in which he cannot accept; rC21

64
 (ii) The fact that the client may be required to retain a solicitor at
short notice and possibly during the case;
(iii) That the barrister CANNOT be expected to perform the functions
of a solicitor and in particular to fulfil any obligations arising out
of the conduct of litigation.
12 Duty to report non-compliance to the BSB
(a) If the barrister considers that there are substantial grounds for rC129
believing that the licensed access client has in some significant respect
failed to comply with either:
(i) The terms of the license; or (where applicable)
(ii) The terms of the Licensed Access Terms of Work
the barrister must report the facts to the BSB.
13 Record Keeping and Retention of Documents
(a) The barrister must retain the same documents as for public access for rC141
the same minimum seven year period.

65
Notes

66
Chapter 12: Unregistered Barristers, Pupils and Students

1 Definition and Scope of Work

(a) An unregistered barrister is an individual who does not hold a
practising certificate but who has been called to the Bar by one of the
Inns and has not ceased to be a member of the Bar
(b) Unregistered barristers (i.e. those without a practising certificate) are
NOT permitted to undertake reserved legal activities
(c) N.B. it is a criminal offence for a barrister to supply reserved legal
activities without a practising certificate. However, they may supply
other types of legal services e.g. advice, provided that they abide by
the following rules and guidance.
(d) Certain things are excluded from the definition of legal services and so
these rules do not apply:
(i) sitting as a judge or arbitrator or acting as a mediator, early
neutral evaluation, expert determination and adjudications;
(ii) lecturing in or teaching law or writing or editing law books
articles or reports;
(iii) examining newspapers, periodicals, books, scripts and other
publications for libel, breach of copyright, contempt of court and
the like;
(iv) communicating to or in the press or other media;
(v) giving advice on legal matters free to a friend or relative or acting
as unpaid or honorary legal adviser to any charitable benevolent
or philanthropic institution;
(vi) in relation to a barrister who is a non-executive director of a
company or a trustee or governor of a charitable benevolent or
philanthropic institution or a trustee of any private trust, giving to
the other directors trustees or governors the benefit of his
learning and experience on matters of general legal principle
applicable to the affairs of the company institution or trust;
Holding Out
(e) As an UNREGISTERED barrister you must NOT use the term “barrister”
to describe yourself in connection with the supply of or offer to supply
legal services. You must not do or say anything which could give the
impression that you are a registered barrister, e.g. wearing robes or
sitting in a place reserved for counsel in court.
(f) This is known as “holding out” and it is a CRIMINAL OFFENCE.
2 Matters of which a client of an unregistered barrister must be aware
rC144

67
 (a) An unregistered barrister MUST, before supplying legal services to any
inexperienced client explain:
(i) , He is NOT acting as a barrister;
(ii) He is NOT subject to those parts of the Code of Conduct and
Handbook which only apply to registered barristers;
(iii) The BSB will ONLY consider COMPLAINTS against an unregistered
barrister which concern the Core Duties and applicable provisions
of the Handbook;
(iv) He is NOT covered by professional indemnity insurance (if
applicable);
(v) The client has a right to make a complaint (including how they
can complain, to whom and any time limits), BUT they have no
right of complaint to the Legal Ombudsman.
(b) An unregistered barrister must get written confirmation from the client
that he has complied with the above.
(c) The following would constitute inexperienced clients in this context:
(i) an individual;
(ii) a business with fewer than 10 employees and turnover below
€2,000,000;
(iii) a charity with an annual income less that £1,000,000;
(iv) a club or association with an annual income below £1,000,000;
(v) a trustee of a trust with a value of less than £1,000,000;
(vi) a personal representative or beneficiary of the estate of a person
who before his/her death, had not referred the complaint to the
Legal Ombudsman
3 When the Rule does NOT apply
(a) The Rule does not apply if the unregistered barrister is supplying legal rC145
services:
(i) As an employee or manager of an authorised body;
(ii) As an employee or manager of a body subject to regulation by its
own professional body or regulator;
(1) This would normally cover barristers who are employed by
solicitors to do legal work, as they would be within the
scope of the solicitor’s regulation by the Solicitors
Regulation Authority
(iii) If he is supplying the services as part of his work at a Legal Advice
Centre;
(iv) Pursuant to an authorisation that he has obtained from another
approved regulator.

68
4 Core Duties and Rules that apply to Unregistered Barristers
(a) Core Duties 5 and 9 and Rules rC8 (not to do anything that might
undermine your integrity and independence), rC16 (duty to client
subject to duty to court and duties of honesty, integrity and
independence) and rC64 -70 (provision of information to BSB including
serious misconduct) apply to unregistered barristers at ALL TIMES, even
when NOT supplying legal services.
(b) The following CDs and rules apply to an unregistered barrister when
supplying legal services:
(i) All 10 Core Duties;
(ii) Rules rC4 and 5 (duty to client subject to duty to court but does
not override confidentiality), rC19 ( not misleading clients) and
rC144 and 145 (information to be given to clients).
5 Rules in relation to pupils
(a) A first six pupil does not have a practising certificate and CANNOT
supply legal services as a barrister. They can accept a noting brief with
the permission of their pupil supervisor/ head of chambers (in that
capacity they may describe themselves as a pupil barrister). If a first six
pupil provides unreserved legal services in any other capacity (e.g.
giving pro bono advice) they should NOT describe themselves as a
“barrister” or “pupil barrister” and must comply with the rules and
guidance for unregistered barristers.
(b) A second six pupil may provide legal services. They may describe
themselves as a “pupil barrister” and must ensure that any client
understands their status.
6 Conduct of Students
(a) These rules apply to you when you are a student member of one of the
Inns of Court.
(b) You MUST observe any regulations about conduct and discipline made R102
by your Inn.
(c) Notifying your Inn of potential misconduct
(i) If you: rQ103
(1) Become the subject of pending CRIMINAL PROCEEDINGS or
are convicted of a criminal offence; or
(2) Become the subject of pending DISCIPLINARY PROCEEDINGS
or are convicted of a disciplinary offence by a professional
or regulatory body; or
(3) Are the subject of a BANKRUPTCY ORDER or directors
disqualification order or you enter into an Individual
Voluntary Arrangement with creditors; or

69
 (4) Are found guilty of an ACADEMIC OFFENCE by a higher
education institution (and have not successfully appealed
against the finding);
then you MUST immediately NOTIFY your Inn in writing.
(d) Your Inn’s power to investigate
(i) Where you have given a notification under paragraph (c). above, rQ104
or a complaint, or report is made about you, or it appears from
information given in your call declaration or otherwise that you
have or may have:
(1) MADE A FALSE STATEMENT or acted in breach of any
undertaking given in your admission declaration or call
declaration; or
(2) While a student you have:
[a] Committed a BREACH of the Inn’s CONDUCT OR
DISCIPLINARY REGULATIONS; or
[b] Been convicted of a CRIMINAL OFFENCE; or
[c] Been convicted of a DISCIPLINARY OFFENCE by a
professional or regulatory body; or
[d] Been the subject of a BANKRUPTCY ORDER or directors
disqualification order or you enter into an IVA with
creditors; or
[e] Been found guilty by a BPTC provider of CHEATING OR
OTHER MISCONDUCT; or
[f] Otherwise been guilty of any CONDUCT
DISCREDITABLE to a member of your Inn,
your Inn MAY make enquiries or require you to provide such rQ105
information as it thinks fit; and MUST consider whether the
matter is a SERIOUS MATTER.
(e) Disposal of Non-Serious Matters
(i) If your Inn decides the matter is NOT a SERIOUS MATTER the Inn rQ106
may deal with the matter internally and may:
(1) Dismiss any complaint; or
(2) Decide to take no action; or
(3) Advise you as to future conduct; or
(4) Reprimand you; or
(5) Ban you for a specified period from using some or all of the
Inn’s facilities.
rQ107

70
 (ii) You may appeal from such a decision to the Inns’ Conduct
Committee (ICC).
(f) Disposal of Serious Matters
(i) If at any stage your Inn decides that the matter is a SERIOUS rQ108
MATTER, the Inn must refer the matter to the ICC for
determination. After deciding the matter, the ICC MUST send a
report of its findings and reasons to you.
(ii) If the ICC finds a SERIOUS MATTER proved, it may: rQ109
(1) Advise you as to future conduct; or
(2) Reprimand you; or
(3) Order your call to the bar to be postponed for a specified
period; or
(4) Direct that you be expelled from your Inn.
(iii) You may seek a review of a decision by the ICC provided that you rQ110
make the request in writing to the BSB within one month of the
date on which you were notified of the ICC’s decision.
(g) Prohibition against being called to the Bar whilst an investigation is
ongoing
(i) Where your Inn or the ICC is investigating a matter covered by rQ111
these rules you may not be called to the Bar until the matter is
finally decided.

71
Notes

72
Chapter 13: Rules about Complaints

1 Informing Clients of the Right to Complain

(a) You MUST notify clients in writing when you are instructed, or if that is rC99
impracticable, at the next available opportunity of the following:
(i) The client has the RIGHT to make a COMPLAINT, including:
(1) HOW and TO WHOM they can complain;
(2) any TIME LIMITS for their complaint;
(3) their right to complain to the LEGAL OMBUDSMAN (if such a
right exists);
(ii) if you are doing referral work the client MAY COMPLAIN DIRECTLY
to your CHAMBERS without going through your instructing
solicitor.
(1) i.e. work sent to you by a solicitor
(b) If you do not send a general letter of engagement to a lay client which rC102
contains the information, you must send a specific letter to them.
(c) If you are doing PUBLIC ACCESS or LICENSED ACCESS work using an rC100
intermediary, the intermediary MUST be given the same notification as.
above.
(d) If you are doing referral work, you do NOT need to give your instructing rC101
solicitors the information in 15.1. above in a SEPARATE letter, it is
sufficient to provide it in an ordinary terms of reference letter which is
sent to the solicitor upon acceptance of instructions.
(e) Your chambers website and literature MUST display information about rC103
the chambers COMPLAINTS PROCEDURE.
2 Dealing with Complaints
(a) All complaints must be acknowledged PROMPTLY. rC104
(b) When you acknowledge a complaint you MUST give the complainant:
(i) The NAME and ROLE of the person who will deal with the
complaint;
(ii) A copy of the CHAMBERS COMPLAINTS PROCEDURE;
(iii) The DATE by which the complainant will next hear from chambers
about their complaint.
(c) When chambers has dealt with the complaint, complainants MUST be rC105
told in writing:
(i) Of their right to complain to the LEGAL OMBUDSMAN (where
applicable),
(ii) The TIME LIMIT for doing so; and

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 (iii) How to contact them.
3 Guidance on First Tier Complaint Handling
(a) The rules on Complaints are supplemented by the BSB Guidance on
First Tier Complaints Handling. This is a long document which has not
been fully summarised here for reasons of brevity. However, students
may wish to note the following points which have been extracted from
the Guidance.
(b) The Guidance draws a distinction between:
(i) Service complaints;
(ii) Complaints of professional negligence;
(iii) Complaints of misconduct.
(c) While chambers may not be the best forum in which to deal with
complaints of professional negligence and has NO positive duty to
investigate misconduct, it MUST investigate complaints about the
service received by the client. Further, chambers must not refuse to
investigate a complaint because it contains elements of professional
negligence and/or misconduct ALONGSIDE service complaints.
(d) Where a complaint raises an allegation of professional negligence it
may be appropriate to inform BMIF and to consult them before any
proposals for resolution are made to the client.
(e) There are a number of stages of any complaint which are
recommended in the Guidance (some are mandatory, others are not):
(i) The client must be NOTIFIED of his right to complain to chambers.
(ii) Chambers should adopt a COMPLAINTS PROCEDURE.
(iii) Complaints Procedure First Stage – where the complainant is
spoken to over the phone by a designated person within
chambers to try to resolve the complaint to the satisfaction of the
client.
(iv) Complaints Procedure Second Stage – where Chambers convenes
a complaints panel of experienced practitioners and a senior
member of staff to deal with a complaint not resolved by stage 1.
(v) Confidentiality – all conversations had and documents used in the
Complaints procedure shall be kept confidential and only
disclosed to the extent necessary.
(vi) Record keeping – records should be kept of the 1 st stage of the
procedure and where it is required the 2 nd stage.

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Chapter 14: The Code for Crown Prosecutors

1 General Principles
(a) Prosecutors must be FAIR, OBJECTIVE and EVEN-HANDED in their
approach.
(b) They must not allow the PROTECTED CHARACTERISTICS of any suspect,
victim or witness to influence their decisions.
(c) They must NOT be affected by IMPROPER OR UNDUE PRESSURE from
any source.
(d) They must always act in the INTERESTS OF JUSTICE and NOT solely for
the purposes of obtaining a conviction.
(e) Prosecutors should not start or continue with prosecutions which
amount to an ABUSE OF THE COURT’S PROCESS.
(f) They must only start or continue a prosecution when the case has
passed BOTH stages of the FULL CODE TEST. The only exception to this
rule is when the THRESHOLD TEST is being applied to keep a suspect in
custody after charge and not all of the evidence is yet available.
2 The FULL CODE Test
(a) The FULL CODE Test has 2 stages:
(i) The EVIDENTIAL stage; and
(ii) The PUBLIC INTEREST stage.
(b) At the evidential stage, prosecutors must be satisfied that there is
SUFFICENT EVIDENCE to provide a REALISTIC PROSPECT of conviction.
(c) A REALISTIC PROSPECT of conviction means that an objective, impartial
and reasonable tribunal of fact, properly directed, is MORE LIKELY
THAN NOT to convict the Defendant
(i) This is akin to the ordinary CIVIL standard of proof
(d) In considering the EVIDENTIAL test, prosecutors should consider the
following:
(i) The ADMISSIBILITY of the evidence;
(ii) The RELIABILITY of the evidence;
(iii) The CREDIBILITY of the evidence; and
(iv) The SUFFICIENCY of the evidence

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 (e) Where a case passes the EVIDENTIAL test the prosecutor MUST go on
to consider whether the prosecution is in the PUBLIC INTEREST.
(f) Under the PUBLIC INTEREST test, a prosecution will take place UNLESS
the public interest factors tending against a prosecution OUTWEIGH
those tending in favour.
(g) In considering this question, prosecutors are required to consider the
following:
(i) The SERIOUSNESS of the offence;
(ii) The suspect’s CULPABILITY;
(iii) HARM caused to the victim;
(iv) Was the suspect aged UNDER 18 at the time of the offence;
(v) The impact on the COMMUNITY;
(vi) Is prosecution a PROPORTIONATE REPSONSE;
(vii) Do sources of information need protecting.
3 The THRESHOLD TEST
(a) The THRESHOLD TEST may only be applied where the suspect presents
a substantial bail risk and not all the evidence is available at the time
when he or she must be released from custody unless charged.
(b) It may be applied where:
(i) There is insufficient evidence to apply the FULL CODE test; and
(ii) Further evidence is likely to become available within a reasonable
period; and
(iii) The seriousness of the case justifies the making of an immediate
charging decision; and
(iv) There are substantial grounds to object to bail under the Bail Act;
and
(v) It is in the PUBLIC INTEREST to charge the suspect.

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Chapter 15: The Farquharson Guidelines – The Role and Responsibilities of the
Prosecution Advocate

1 Duties upon being instructed by the CPS

(a) Prosecuting counsel must read instructions expeditiously and advise or
confer with those instructing him on all aspects of the case well before
the start of the trial.
(b) Upon receipt of instructions the prosecution advocate will advise in
writing (unless the advice is urgent) where:
(i) The advocate forms a different view form the CPS about the
acceptability of pleas;
(ii) The indictment requires amendment;
(iii) Additional evidence is required;
(iv) The case no longer meets the evidential test or the public interest
test;
(v) Formal admissions should be made;
(vi) An issue of disclosure arises;
(vii) A conference is required;
(viii) The case requires evidence to be prepared or presented to the
jury in some special way.
2 Withdrawal of Instructions
(a) The CPS may withdraw instructions from counsel before the
commencement of the trial up to the point where it becomes
impracticable to do so, if it disagrees with the advice given by counsel
or for any other proper professional reason.
3 Decision Making
(a) It is for prosecuting counsel to take all necessary decisions in the
presentation and general conduct of the prosecution.
(b) When considering offering no evidence or the acceptability of pleas it
is the duty of counsel to CONSULT the CPS, whose views at this stage
are of crucial importance.
(c) If such an issue arises whilst counsel is at court and it is NOT possible
for counsel to consult with the relevant Crown Prosecutor, then counsel
should apply for an adjournment of the case.
(d) Where such an application is refused counsel may make the decision
but must record their reasons in writing.
(e) In the rare cases where counsel and the CPS are unable to agree on
such a matter it is, subject to the next paragraph, for counsel to make
the necessary decisions.

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4 Last Minute Changes of Advice
(a) Where, at the last minute before a trial counsel unexpectedly advises
that the case should not proceed or that pleas to lesser offences should
be accepted and the CPS do not accept such advice, counsel should
apply for an adjournment (if so instructed), to allow new counsel to be
instructed.
5 Judicial Approval
(a) If prosecution counsel, having decided on a particular course of action,
invites the judge to approve the course proposed, then he MUST abide
by the judge’s decision.
(b) If prosecution counsel does NOT seek the Judge’s approval, it is open to
the judge to express dissent and to invite counsel to reconsider the
matter with the CPS, but having done so, the final decision remains
with counsel.

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Chapter 16: Money Laundering and Terrorist Financing

1 Introduction
(a) The law imposes specific requirements on barristers not to become
involved in money laundering or terrorist financing arrangements, and
further imposes duties on barrister to report clients to the National
Crime Agency if they suspect that money laundering or terrorist
financing is occurring. However the duty to report is limited to certain
types of work that barristers may become involved in.
(b) For the purposes of English law, MONEY LAUNDERING (ML) is any
activity in relation to the proceeds of crime, even passive activity such
as mere possession.
(c) TERRORIST FINANCING (TF) is the raising, moving, storing and using of
financial resources for the purposes of terrorism.
2 Duties imposed on ALL Barristers
(a) It is the duty of EVERY BARRISTER to understand the principles of ML
and TF and how to recognise them.
(b) Every barrister owes a duty NOT to become involved in conduct that
involves ML or TF.
(c) The ORDINARY CONDUCT OF LITIGATION has been held not to
constitute conduct that involves ML or TF. This means that MOST of the
things that barristers do will NOT trigger anti ML or counter TF
obligations. However, there are circumstances which may take litigation
out of the “ordinary”. Further, the “ordinary conduct of litigation”
exception does not apply to activities performed outside a litigation or
arbitration context.
(d) Barristers must know how to address the risks of becoming involved in
conduct that involves ML or TF and how and when to take the correct
and necessary action when such risks arise.
(e) Barristers MUST COMPLY with the anti-ML and counter-TF
requirements of the BSB and the BSB Handbook
(i) These requirements are not part of the Ethics syllabus.
(f) The law in this area is broadly drafted and the consequences of failing
to comply are potentially severe (including criminal penalties of up to
14 years’ imprisonment).

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3 Legal Professional Privilege
(a) The provisions of POCA and the Terrorism Act do NOT override a
client’s legal professional privilege. Barristers MUST NOT make any
form of disclosure to the authorities of information that is covered by
privilege.
(b) Legal Professional Privilege does NOT protect communications made in
furtherance of a crime. Therefore, a letter from a client asking his
lawyers to conceal criminal property is not covered by the privilege.
4 Enhanced Duties when carrying out Transactional or Tax Work
(a) Money Laundering Regulations cover two situations in which barristers
might be involved. REMEMBER that the ordinary conduct of litigation is
not caught by any of these provisions. The two situations are providing
transactional legal services and tax advice.
(b) If you are instructed:
(i) As an independent legal professional when participating in
financial or real property transactions; and
(ii) The transactions concern:
(1) Buying and selling real property or business entities;
(2) Organising contributions necessary for the creation,
operation or management of companies;
(3) The creation, operation or management of trusts,
companies or similar structures; and
(iii) You are participating in the transaction by:
(1) Assisting in the planning or execution of the transaction; or
(2) Otherwise acting for or on behalf of a client in the
transaction,
YOU ARE WITHIN THE SCOPE OF THE REGULATIONS.
(c) If you are acting as a TAX ADVISOR in relation to the provision of tax
advice then YOU ARE WITHIN THE SCOPE OF THE REGULATIONS.
(d) If you are within the scope of the regulations then you MUST:
(i) UNDERTAKE Customer Due Diligence;
(ii) KEEP A RECORD of the Customer Due Diligence that you carry out;
(iii) MONITOR your relationship with the customer.
(e) You must take a RISK BASED approach to these obligations, i.e. the
greater the risk posed by the client the more stringently the obligations
must be adhered to.

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 (f) Potential indicators of risk include:
(i) The lay client being based in a high risk country or region;
(ii) The nature of the business operated by the client;
(iii) The source of the funds involved in the transaction;
(iv) The personal circumstance of the client or someone involved in
your instructions.
(g) Where you act upon instructions from a solicitor you may be able to
rely on their Customer Due Diligence. HOWEVER, you remain legally
and PEROSNALLY responsible for those checks and, by extension, for
any failings in them.
5 Offences that Barristers can commit
(a) When you are undertaking work that falls within the scope of the
Regulations you may commit a criminal offence if:
(i) You suspect that ML or TF is taking place and you fail to make the
required disclosure to the authorities; or
(ii) You make an unauthorised disclosure of your suspicion of ML or
TF or of your knowledge of a ML investigation to another person
(this offences is commonly known as “tipping off”).
6 Making a Disclosure to NCA
(a) When you are required to make a disclosure of suspected ML or TF this
must be done by making a report to the National Crime Agency.
7 Seeking Legal Advice
(a) If you are unclear as to your obligations you must take independent
legal advice.

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Index

Chapter 4, 25 gC56, 17
Chapter 6, 32 gC57, 17
gC10, 11 gC58, 17
gC102, 38 gC59, 17
gC103, 43 gC6, 11
gC106, 43 gC62, 17
gC107, 43 gC65, 27
gC11, 9 gC66, 27
gC119, 44 gC69, 19
gC12, 12 gC7, 11
gC124, 44 gC70, 20
gC127, 44, 45 gC71, 19
gC129, 45 gC73, 20, 22
gC13, 10 gC77, 25
gC14, 27 gC83, 22
gC18, 28 gC84, 22
gC19, 28 gC85, 21
gC20, 28 gC87, 22
gC22, 29 gC88, 23
gC25.3, 29 gC9, 11
gC25.4, 29 gC90, 24
gC25.5, 30 gC91, 24
gC25.7, 30 gC91A, 24
gC26, 30 gC93, 39
gC27, 30 gC94.1, 36
gC29, 30 gC96, 37
gC31, 30 gC97, 37
gC36, 13 gC98, 38
gC37, 14 gQ3 and 4, 58
gC38.1, 15 gQ4, 58
gC38.2, 15 gS10, 52
gC38.3, 15, 16 gS9, 52
gC38.4, 15 I1, 5
gC39, 16, 20 I2, 5
gC4.1, 9 I6, 5
gC4.2, 9 R102, 69
gC4.4, 9 rC10, 29
gC41, 16 rC100, 73
gC46, 13 rC101, 73
gC49, 14 rC102, 73
gC5, 10 rC103, 73
gC51, 13 rC104, 73
gC54, 17 rC105, 73

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rC11, 12 rC25.3, 21
rC12, 32 rC26.1, 21
rC120, 59 rC26.2, 21
rC120.3, 59 rC26.3.a, 21
rC121, 59, 63 rC26.3.b, 21
rC122, 60 rC26.3.c, 21
rC123, 60 rC26.5, 21
rC125, 61 rC26.6, 21
rC126, 62 rC26.8, 21
rC127, 60 rC27.1, 22
rC128, 62 rC27.2, 22
rC129, 62, 65 rC28, 23, 59, 60
rC13, 31 rC29, 23, 59
rC131, 62 rC3, 9
rC132, 63 rC3.1, 9
rC134, 64 rC3.2, 10
rC135, 64 rC3.3, 10
rC136 and 137, 64 rC3.4, 10
rC138, 64 rC3.5, 10
rC14, 31 rC30, 24
rC141, 65 rC4, 9
rC144, 67 rC5, 9
rC145, 68 rC6.1.a, 9
rC15.1, 13 rC6.1.b, 9
rC15.2, 13 rC6.2, 9
rC15.3, 13 rC64.1, 38
rC15.4, 13 rC64.2, 39
rC15.5, 13 rC65, 36
rC16, 13 rC66, 37
rC17, 14 rC67, 37
rC18, 14 rC68, 38
rC19, 17 rC69, 38
rC20, 27 rC7.1, 10
rC21, 19, 64 rC7.2, 10
rC21.1, 19 rC7.3, 10
rC21.10, 19 rC7.4, 10
rC21.2, 19 rC70, 39
rC21.3, 19 rC71, 39
rC21.4, 19 rC72, 39
rC21.5, 19 rC73, 43
rC21.6, 19 rC76, 42
rC21.7, 20 rC77, 42
rC21.8, 19, 59 rC78, 42
rC21.9, 19 rC79, 44
rC22.1, 25 rC8, 27
rC25, 21 rC80, 44
rC25.1, 21 rC81, 44

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rC82, 44 rQ133, 57
rC83, 44 rQ134, 57
rC84, 44 rQ135, 58
rC85, 44 rS16, 48
rC86, 45 rS19, 48
rC87, 42 rS20, 48
rC88, 42 rS22, 49
rC9, 27 rS24, 49
rC99, 73 rS29, 50
rI7, 6 rS30, 50
rQ103, 69 rS39, 50
rQ104, 70 rS41, 52
rQ105, 70 rS42, 52
rQ106, 70 rS45, 53
rQ107, 70 rS46.1, 53
rQ108, 71 rS46.2, 53
rQ109, 71 rS47, 53
rQ110, 71 rS48, 55
rQ111, 71 rS49, 55
rQ130.2, 57 rS50 and 51, 55
rQ132, 57 rS52, 55

84