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Public Access (Nature of work (do not accept instructions if you are not…
Public Access
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
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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
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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