Professional Ethics Revision Notes
10 Golden Rules
1. CONFIDENTIALITY Preserve the confidentiality of your lay client’s affairs.
2. DUTY TO COURT You must not knowingly or recklessly mislead the court.
3. DUTY TO PROFESSION You must not engage in conduct:
(a) which is dishonest or otherwise discreditable to a barrister;
(b) prejudicial to the interests of justice; or
(c) which will diminish public confidence in the legal system or bring the legal profession into
disrepute.
4. DISCRIMINATION You must not discriminate in relation to any person by reason of race, colour,
ethnicity, religion, nationality, citizenship, sex, sexual orientation, marital status, disability or
political persuasion.
5. INDEPENDENCE You must not permit your absolute independence, integrity, and freedom from
external pressures to be compromised nor do anything which could lead to the inference that it
is so compromised.
6. CAB RANK You must observe the “cab rank” rule: A barrister must accept instructions if it is in his
field of expertise, whatever the instructions and whomever the client
7. PROFESSIONAL EMBARRASSMENT A barrister would be professionally embarrassed and must
refuse instructions if:
(1) He lacks sufficient experience or competence to handle the matter;
(2) He has inadequate time or opportunity to prepare to case;
(3) The instructions seek to limit his ordinary authority or discretion in the proceedings, or
require him to act otherwise than in conformity with the law or this code;
(4) If he may be a witness in the matter;
(5) If by some connection with client or a member of the court it would be difficult for him to
maintain professional independence or the administration of justice may be or appear to be
prejudices.
(6) There is a conflict of interest or a risk of a conflict of interest between the barrister and the
client or between any one or more of his clients;
(7) There is a significant risk that information confidential to a client or former client may be
revealed or used without their consent;
(8) He has been instructed by a lay client who has not instructed a solicitor and it is in the
interests of the client or of justice for him to do so.
, Written Standards 3.5: Where a barrister has accepted a brief from one party in proceedings, he
should not accept a brief for an appeal or further stage in the proceedings without the consent
of the original party.
A barrister may refuse instructions:
(1) The require him to work other than during the course of his ordinary working year.
(2) If it is not for a proper fee, considering the complexity, difficulty, and length of the case, his
ability and seniority, and any expenses his will incur.
(3) Offered under a CFA.
If at any time a barrister considered the client should be represented by another he should so
advise the client.
A barrister must withdraw and return instructions if:
(1) If he would be professionally embarrassed;
(2) If he would be required to be a witness of fact, but only if he would withdraw without
jeopardising his clients interest;
(3) He has accepted instructions from more than one client and a conflict of interest or risk of
conflict arises or a risk of a breach of confidence and all clients do not consent to him
continuing;
(4) The case is publically funded and the funding was obtaining by false or inaccurate
information and action to remedy the situation was not taken immediately by the client;
(5) The client refuses to authorise him to make a disclosure which a duty to the court requires
him to disclose;
(6) Client refuses to disclose a document that should be disclosed;
(7) If a barrister reads something he shouldn’t have and he would be embarrassed by the
contents, he must withdraw if it will not jeopardise the interests of his client;
A barrister may withdraw if:
(1) He has advised his client that he should get alternative representation or that there is a
conflict of interest between the lay client and another party (his profession client for
instance) and the lay client and the client doesn't heed his instructions.
(2) Other substantial reason for doing so.
(3) His instructions have been withdrawn.
A barrister must NOT:
(a) cease to act without explaining why;
(b) return instructions to another barrister without the client’s consent;
(c) return a brief where a date has been set without the consent of the client or the court;
(d) except where the barrister must withdraw a barrister must not withdraw or return
instructions where the client will be unable to find counsel in time for prejudice not to be
done.
8. ARGUMENTS A barrister must not:
(i) devise facts;
, (ii) make allegations unsupported by your instructions and the evidence;
(iii)plead fraud without clear instructions AND sufficient evidence to raise a prima facie case; or
(iv)make submissions that are not properly arguable.
9. WITNESSES A barrister must not:
(i) impugn a witness unless you have put that point to the witness in XX;
(ii) make defamatory allegations against any person unless such allegations are a matter in issue
and are supported on reasonable grounds;
(iii)rehearse, practice, or coach a witness in relation to his evidence;
(iv)encourage a witness to be untruthful or which is not the whole truth.
10.BARRISTER DUTIES A barrister must act only within his competence, ensure he has reasonable
time to prepare and perform, and READ ALL INSTRUCTIONS PROPERLY.
Other important rules
1. To bring to the attention of the court all the relevant decisions and legislative provisions of which
you are aware, regardless of whether they are favourable to your case;
2. To bring any procedural irregularity to the attention of the court during the trial;
3. Not to assert a personal opinion to the court unless invited by the court to do so;
4. Not to make statements or ask questions which are merely intended to insult or annoy a witness
or another person;
5. To take all reasonable and practicable steps to avoid unnecessary expense or wasting of the
courts time.
6. To promote and protect fearlessly and by all proper and lawful means the lay client’s best
interests and to do so without regard to your own interests or to any other consequences to
yourself or any other person.
7. To understand that this primary duty (above at 6) is to the lay client and not to the professional
client.
Wasted Costs Orders
A barrister can be made personally liable for costs if they result from improper, unreasonable or
negligent act or omission where the court finds that it would be unreasonable to expect the party to
pay. However, there must be a causal link between the action and the wasted costs.
A three-stage test was set down in Re a Barrister:
(i) Has there been an improper, unreasonable, or negligence act or omission?
(ii) If so, has any costs been incurred by any party in consequence thereof?
(iii)If so, should the court use its power to make the party pay some or all of the costs?
Sir Thomas Bingham clarified a few points:
● ‘improper’ is not exclusively violating the code but improper according to professional
opinion;
● ‘negligence’ has the untechnical definition;
, ● Pursuing a claim that is doomed to failure is not improper, unreasonable, or negligent.
Duties of Prosecuting Counsel - Part 10 of Part 3 of the Code
Overriding responsibility of prosecuting counsel is to act fairly, impartially, and not to seek to obtain a
conviction by all the means at his or her command.
It should also be known that it is for prosecuting counsel to decide whether to offer evidence on
particular counts or whether to accept pleas for lesser count/s.
Other duties include:
o To lay all the facts before the court in a fair and impartial manner;
o Presenting the case as clearly and concisely as possible;
o Ensuring proper service upon the defence in line with the A-Gs Guidelines and CrimPR rules.
o To point out any relevant errors in fact or law after summing up;
o To assist the court with any relevant statutory provisions regarding sentencing and to not try and
sway the court on sentencing through advocacy.
Further duties include:
o To inform the defence of any previous convictions of any of the prosecution witnesses;
o To call or tender witnesses at trial;
o To adduce all the evidence you intend to rely before closing your case;
o To disclose all the evidence that will be called at trial, all the information the defence may not be
aware of which is not part of the prosecution’s case;
o To disclose all the evidence that the prosecution does not intend to rely on but that may
undermine the prosecution’s case or assist the case of the defendant.
o The prosecution counsel has a continuing duty throughout the proceedings to ensure that all the
evidence that ought to be available is used by the prosecution or disclosed to the defence.
o To be familiar with the Practice Direction: Crown Court (Plea and Directions Hearings).
Duties of Defence Counsel - Part 11 of Part 3 of the Code
General duties:
o To ensure that there is no conflict of interest or that none will arise when representing multiple
defendants at a trial;
o Prepare the cases adequately;
o To advise the client on plea, although ensure the defendant understands that the final decision is
theirs;
o To advise on whether the client should give evidence, although to ensure the defendant
understand the final decision is theirs;
o To consider whether any admissions should be made or requested from the Prosecution in order
to save expense at trail.
10 Golden Rules
1. CONFIDENTIALITY Preserve the confidentiality of your lay client’s affairs.
2. DUTY TO COURT You must not knowingly or recklessly mislead the court.
3. DUTY TO PROFESSION You must not engage in conduct:
(a) which is dishonest or otherwise discreditable to a barrister;
(b) prejudicial to the interests of justice; or
(c) which will diminish public confidence in the legal system or bring the legal profession into
disrepute.
4. DISCRIMINATION You must not discriminate in relation to any person by reason of race, colour,
ethnicity, religion, nationality, citizenship, sex, sexual orientation, marital status, disability or
political persuasion.
5. INDEPENDENCE You must not permit your absolute independence, integrity, and freedom from
external pressures to be compromised nor do anything which could lead to the inference that it
is so compromised.
6. CAB RANK You must observe the “cab rank” rule: A barrister must accept instructions if it is in his
field of expertise, whatever the instructions and whomever the client
7. PROFESSIONAL EMBARRASSMENT A barrister would be professionally embarrassed and must
refuse instructions if:
(1) He lacks sufficient experience or competence to handle the matter;
(2) He has inadequate time or opportunity to prepare to case;
(3) The instructions seek to limit his ordinary authority or discretion in the proceedings, or
require him to act otherwise than in conformity with the law or this code;
(4) If he may be a witness in the matter;
(5) If by some connection with client or a member of the court it would be difficult for him to
maintain professional independence or the administration of justice may be or appear to be
prejudices.
(6) There is a conflict of interest or a risk of a conflict of interest between the barrister and the
client or between any one or more of his clients;
(7) There is a significant risk that information confidential to a client or former client may be
revealed or used without their consent;
(8) He has been instructed by a lay client who has not instructed a solicitor and it is in the
interests of the client or of justice for him to do so.
, Written Standards 3.5: Where a barrister has accepted a brief from one party in proceedings, he
should not accept a brief for an appeal or further stage in the proceedings without the consent
of the original party.
A barrister may refuse instructions:
(1) The require him to work other than during the course of his ordinary working year.
(2) If it is not for a proper fee, considering the complexity, difficulty, and length of the case, his
ability and seniority, and any expenses his will incur.
(3) Offered under a CFA.
If at any time a barrister considered the client should be represented by another he should so
advise the client.
A barrister must withdraw and return instructions if:
(1) If he would be professionally embarrassed;
(2) If he would be required to be a witness of fact, but only if he would withdraw without
jeopardising his clients interest;
(3) He has accepted instructions from more than one client and a conflict of interest or risk of
conflict arises or a risk of a breach of confidence and all clients do not consent to him
continuing;
(4) The case is publically funded and the funding was obtaining by false or inaccurate
information and action to remedy the situation was not taken immediately by the client;
(5) The client refuses to authorise him to make a disclosure which a duty to the court requires
him to disclose;
(6) Client refuses to disclose a document that should be disclosed;
(7) If a barrister reads something he shouldn’t have and he would be embarrassed by the
contents, he must withdraw if it will not jeopardise the interests of his client;
A barrister may withdraw if:
(1) He has advised his client that he should get alternative representation or that there is a
conflict of interest between the lay client and another party (his profession client for
instance) and the lay client and the client doesn't heed his instructions.
(2) Other substantial reason for doing so.
(3) His instructions have been withdrawn.
A barrister must NOT:
(a) cease to act without explaining why;
(b) return instructions to another barrister without the client’s consent;
(c) return a brief where a date has been set without the consent of the client or the court;
(d) except where the barrister must withdraw a barrister must not withdraw or return
instructions where the client will be unable to find counsel in time for prejudice not to be
done.
8. ARGUMENTS A barrister must not:
(i) devise facts;
, (ii) make allegations unsupported by your instructions and the evidence;
(iii)plead fraud without clear instructions AND sufficient evidence to raise a prima facie case; or
(iv)make submissions that are not properly arguable.
9. WITNESSES A barrister must not:
(i) impugn a witness unless you have put that point to the witness in XX;
(ii) make defamatory allegations against any person unless such allegations are a matter in issue
and are supported on reasonable grounds;
(iii)rehearse, practice, or coach a witness in relation to his evidence;
(iv)encourage a witness to be untruthful or which is not the whole truth.
10.BARRISTER DUTIES A barrister must act only within his competence, ensure he has reasonable
time to prepare and perform, and READ ALL INSTRUCTIONS PROPERLY.
Other important rules
1. To bring to the attention of the court all the relevant decisions and legislative provisions of which
you are aware, regardless of whether they are favourable to your case;
2. To bring any procedural irregularity to the attention of the court during the trial;
3. Not to assert a personal opinion to the court unless invited by the court to do so;
4. Not to make statements or ask questions which are merely intended to insult or annoy a witness
or another person;
5. To take all reasonable and practicable steps to avoid unnecessary expense or wasting of the
courts time.
6. To promote and protect fearlessly and by all proper and lawful means the lay client’s best
interests and to do so without regard to your own interests or to any other consequences to
yourself or any other person.
7. To understand that this primary duty (above at 6) is to the lay client and not to the professional
client.
Wasted Costs Orders
A barrister can be made personally liable for costs if they result from improper, unreasonable or
negligent act or omission where the court finds that it would be unreasonable to expect the party to
pay. However, there must be a causal link between the action and the wasted costs.
A three-stage test was set down in Re a Barrister:
(i) Has there been an improper, unreasonable, or negligence act or omission?
(ii) If so, has any costs been incurred by any party in consequence thereof?
(iii)If so, should the court use its power to make the party pay some or all of the costs?
Sir Thomas Bingham clarified a few points:
● ‘improper’ is not exclusively violating the code but improper according to professional
opinion;
● ‘negligence’ has the untechnical definition;
, ● Pursuing a claim that is doomed to failure is not improper, unreasonable, or negligent.
Duties of Prosecuting Counsel - Part 10 of Part 3 of the Code
Overriding responsibility of prosecuting counsel is to act fairly, impartially, and not to seek to obtain a
conviction by all the means at his or her command.
It should also be known that it is for prosecuting counsel to decide whether to offer evidence on
particular counts or whether to accept pleas for lesser count/s.
Other duties include:
o To lay all the facts before the court in a fair and impartial manner;
o Presenting the case as clearly and concisely as possible;
o Ensuring proper service upon the defence in line with the A-Gs Guidelines and CrimPR rules.
o To point out any relevant errors in fact or law after summing up;
o To assist the court with any relevant statutory provisions regarding sentencing and to not try and
sway the court on sentencing through advocacy.
Further duties include:
o To inform the defence of any previous convictions of any of the prosecution witnesses;
o To call or tender witnesses at trial;
o To adduce all the evidence you intend to rely before closing your case;
o To disclose all the evidence that will be called at trial, all the information the defence may not be
aware of which is not part of the prosecution’s case;
o To disclose all the evidence that the prosecution does not intend to rely on but that may
undermine the prosecution’s case or assist the case of the defendant.
o The prosecution counsel has a continuing duty throughout the proceedings to ensure that all the
evidence that ought to be available is used by the prosecution or disclosed to the defence.
o To be familiar with the Practice Direction: Crown Court (Plea and Directions Hearings).
Duties of Defence Counsel - Part 11 of Part 3 of the Code
General duties:
o To ensure that there is no conflict of interest or that none will arise when representing multiple
defendants at a trial;
o Prepare the cases adequately;
o To advise the client on plea, although ensure the defendant understands that the final decision is
theirs;
o To advise on whether the client should give evidence, although to ensure the defendant
understand the final decision is theirs;
o To consider whether any admissions should be made or requested from the Prosecution in order
to save expense at trail.
