Unregistered Barristers, Pupils and Students Flashcards
Who is an unregistered barrister?
(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.
What things are excluded from the definition of legal services and so these rules for unregistered barristers do not apply to?
(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
Can an unregistered barrister call themselves a “barrister”?
(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.
What must an unregistered barrister explain to any inexperienced client?
rC144
(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.
What constitutes an inexperienced client (re unregistered barrister)?
(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
When does the Rule NOT apply?
rC145
(a) The Rule does not apply if the unregistered barrister is supplying legal 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.
What are the 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).
What are the rules that apply 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.
How do BSB rules apply to students?
R102, rQ103
(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 by your Inn.
(c) Notifying your Inn of potential misconduct
(i) If you:
(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
(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.
What are the Inn’s powers of investigation?
rQ104 and rQ105
(i) Where you have given a notification under paragraph (c). above, 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 information as it thinks fit; and MUST consider whether the matter is a SERIOUS MATTER.
How will the Inn deal with non-serious matters?
rQ106 and rQ107
Disposal of Non-Serious Matters
(i) If your Inn decides the matter is NOT a SERIOUS MATTER the Inn 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.
(ii) You may appeal from such a decision to the Inns’ Conduct Committee (ICC).
How will the inn deal with serious matters?
rQ108
If at any stage your Inn decides that the matter is a SERIOUS 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.
rQ109
If the ICC finds a SERIOUS MATTER proved, it may:
(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.
rQ110
You may seek a review of a decision by the ICC provided that you make the request in writing to the BSB within one month of the date on which you were notified of the ICC’s decision.
Can you be called to the bar whilst you are being investigated?
rQ111
Where your Inn or the ICC is investigating a matter covered by these rules you may not be called to the Bar until the matter is finally decided.
