Public Access
Before accepting instructions - ensure you have insurance -BMIF is sufficient
Nature of work (do not accept instructions if you are not competent or have insufficient experience to deal with the matter) - can be more demanding to work with a client directly
Examples of work: (1) advocacy; (2) drafting documents; (3) advising in writing; (4) representation in ADR; (5) negotiation; (6) investigating and collecting evidence (not conduct a case in court if you have previously investigated unless you will be unchallenged; (7) corresponding on behalf of your client (have adequate systems, resources and experience
A barrister in independent practice does not have the right to conduct litigation unless authorised - LSA = means issuing proceedings, commencing, prosecution or defending such proceedings, ancillary functions
CANNOT: (1) issue service of proceedings; (2) acknowledge service; (3) filing documents at court; (4) give address for service address; (5) issue notices of appeal - the client would have to do this in the capacity of a litigant in person
Can: (1) lodge documents for hearings; (2) exchange skeleton arguments; (3) cover applications to fix trial dates; (4) discharge a duty or courtesy to the court; (5) prepare court orders; (6) sign a statement of truth
Prohibited from receiving and handling client only + undertaking the general management, administration or conduct of client affairs
Public Funding - if the client qualifies, usually best for them to instruct a solicitor - discuss this matter with the client to ensure that they understand the position regarding legal aid
Interests of client - continuing duty - depends on the complexity of the case, capability of the client and whether the barrister is authorised - consider at every point whether a solicitor is required - failure to do so could result in negligence, inadequate professional service, professional misconduct
Basis of agreement - agreement between barrister and client is contractual - bound by the agreement, and the barrister will be able to sue for fees - fundamentals of the client care letter are set to in respect of each new instruction
Client care letter needs to be sent to the client + may need a preliminary meeting
CD 8 - You must not unlawfully discriminate - consider how the following could affect the capabilities - race, gender, disability, age, pregnancy/maternity, gender re-assignment, religion or belief
Consideration to the limited access to financial resources of the client, illiteracy, vulnerability of the client, homelessness, drug or alcohol dependency - may need additional measures e.g: translation
Non-discrimination rules - not withhold the case because of: (1) nature of the case is objectionable; (2) conduct, opinions or beliefs of the prospective client; (3) financial support - cab rank doesn't apply to public access - but you must not discriminate in the way you accept, refuse or carry out public access instructions
Issues: (1) need to give the client an opportunity to instruct a solicitor or other professional client before you finally withdraw from the case; (2) often only arise after accepting instructions; (3) take full attendance notes where disagreement arises; (4) bear in mind the difficulties faced by a client where the barrister withdraws - may need to contact ethical enquiries helpline
Have complaints procedure in place + deal with them effectively + may be able to complain to the Legal Ombudsman - issues over money may need to be resolved via litigation or the Legal Ombudsman
Keep records - contain separate items for each piece of paperwork - original documents belong to client and should be returned on demand, store originals in secure place, impractical for long periods of time - keep them in case of appeal - electronic storage is permissible if appropriate
Payment: can do a fixed fee in advance (but be cautious), may withhold paperwork until fees are paid (needs to be agreed with the client); in absence of a contractually enforceable lien should return papers to your client on request - ensure you have complied with your record keeping obligations; if agreed in advance may charge disbursements; take care with CFA or DBA - generally money paid in advance is classed as client money and cannot be handled by the barrister
Intermediary - (1) ensure that the intermediary is not acting as a litigator; (2) make sure everyone is aware of the true nature of the arrangement; (3) intermediary may have arranged a contingent fee arrangement - consider potential conflict of interest; (4) if there is a conflict consider whether the client should appoint another professional - not your duty to police private matters; (5) client letter sent to their address not the intermediaries; (6) you are prohibited from paying or receiving a referral fee from an intermediary
Solicitors and professional clients - no objection to accepting instructions where a solicitor is already instructed - consider reason why you have been appointed + if the solicitor is aware - if not aware, solicitor should not be informed of the client seeking advice without client's consent - counsel should be alert to guard against any breach of the rules against 'topping up' in publicly funded cases - advise particular solicitor if: (1) you have reasonable grounds to believe they are competent; (2) no payment for the referral; (3) solicitor is free to instruct another barrister
Protect the client's position - may need to apply to the court for an adjournment; drafting letters for the client to send to the court; providing supporting letters without breaching confidentiality; contact solicitor or other intermediaries who may be willing to take the case