Interests of the client and interests of justice

21. You cannot accept public access instructions if you form the view that it is either in the best interests of your client or in the interests of justice for the client to instruct a solicitor or other professional client (rC120.3, BSB Handbook). This is a continuing duty which you must keep under review during the course of a case.

22. This decision is likely to depend both on the complexity of the case, the capability of the client and whether you are authorised to conduct litigation eg a wellresourced client, such as a large corporation, may be able to handle very complex litigation.

 23. In making this assessment you are likely to reach one of three views:  The level of the case and the likely work involved is within the client's capabilities and there is no obvious reason why a solicitor or other professional client should be instructed.  The case is of such complexity or has reached a stage that it is not in the client's interests or the interests of justice to instruct a barrister without a solicitor or other professional client. Having reached such a view you can no longer act on a public access basis. You would be able to act if instructed by a solicitor (or other professional client) and you can make recommendations as to who could act.  The case may well become complex and may involve work which the client cannot do, but you do not consider that a solicitor or other professional client needs to be instructed yet.

24. In every case you must make your client aware at the outset that there may be circumstances in which you will have to recommend that a solicitor (or other professional client) is instructed, and that you will have to withdraw if that advice is not heeded. There is a paragraph in the model client care letter (see paragraph 33 below) setting this out.

25. It is essential that barristers should consider at every point at which they are instructed whether a client needs to instruct a solicitor and to advise as soon as it becomes clear that this is the case. This is of particular importance where limitation periods are involved or where hearings are imminent. Barristers failing to do this may find themselves at risk of actions in negligence, findings of inadequate professional service by the Office of the Legal Ombudsman, or professional misconduct charges by the BSB. 9 Relationship with client (A) Initial contact

26. It is likely that initial contact will be by a telephone call or email between the client and yourself or your clerk, or the receipt of written instructions in Chambers. You are required to keep a record of the date that instructions were received, the name of the client, the name of the case and any requirement of the client as to time limits (rC128). As you will also need to send a client care letter you will need the client’s address.

27. You may take the view that a preliminary meeting is required. This may be necessary to comply with the requirements of the Money Laundering Regulations (see paragraphs 72 to 75 below). If so, you should write to the client summarising those regulations and setting out what is required in order to satisfy the identification requirements. A preliminary meeting may be helpful to decide whether you will accept the instructions. It is open to you to accept instructions for the limited purpose of reading papers and advising whether you are able to perform substantive professional work; in such a situation it is open to you to make an arrangement that you are paid a fee for doing so. If you decide to charge for the preliminary meeting, a client care letter should be sent to the client in the usual way, setting out the charge for the advice and any other work done and making it clear that you do not agree to do more in the first instance than assess whether or not you can assist the client. In many cases, you may consider that it is good client care not to charge for a preliminary meeting. (B) Identifying and representing vulnerable clients

28. There are a number of factors which may make a client vulnerable and which may have implications for how you manage their case. Some of these factors may be obvious, for example a client may be very young or may not be able to speak English. Issues related to the protected characteristics listed in the Equality Act 2010 which may make a client vulnerable include:

Race

• Clients with English as a second, third or non-existent language.
• Asylum seeking or refugee clients who may have mental health issues such as post-traumatic stress conditions related to treatment (e.g. torture or persecution) in their home country.
•  Immigration clients who may have been separated from their families or who are new to the UK, may be unfamiliar with the UK legal system and who may have difficulties carrying out litigation work.

 Gender

• Clients with caring responsibilities for young or disabled children, particularly lone parents who may have difficulties in undertaking tasks such as serving documentation at court.
•  Clients with caring responsibilities for older dependents, in particular lone carers.  Lone parents who may have access to less financial resources than other clients.
•  Sensitivity of men or women in relation to one to one meetings with the opposite sex - if this is necessary or in relation to questioning/discussion of intimate subjects.

Disability

•  Clients with physical impairments which may impact upon their ability to undertake physical aspects of litigation.
•  Clients with physical or mental health issues which may impact upon their ability to undertake litigation activities.
•  Clients with learning disabilities.
• Clients who are heavily reliant on carers to manage their day to day activities.

Age

•  Very young clients.
• Clients who for reasons relating to their age (particularly older clients) may find the physical aspects of litigation difficult.
• Clients who for reasons relating to their age have difficulties associated with memory loss and/or confusion.

Pregnancy/Maternity

 Heavily pregnant or new mothers who may find the physical aspects of conducting litigation difficult.

New mothers with post natal health issues affecting physical mobility or mental health (e.g. post natal depression).

Gender re-assignment

Clients undergoing transition (which may involve frequent visits to hospital or other medical appointments).

Religion or belief

Clients whose religious beliefs make it difficult for them to undertake litigation activities on particular days or at particular times.

29. Other relevant factors to consider in relation to the vulnerability of a client include: 11  Limited access to financial resources to pay for the cost of litigation activities or additional unforeseen costs.  Illiteracy or low levels of literacy.  Vulnerability or trauma arising from the matter at issue (e.g. the matter involves a serious crime such as serious assaults or sexual offences perpetrated against the client).  Homelessness.  Drug or alcohol dependency or other addiction issues.

30. The term ‘vulnerable client’ should be interpreted widely. You will need to identify any factors that may make a client vulnerable when considering whether or not to take on their case. Having identified any such factors, you will need to consider what additional measures, if any, are necessary to ensure that the client is supported properly and understands fully any information which you communicate to them, so that you may act in their best interests. This may involve ensuring that documentation provided to your client is translated into another language or into plain English. You should also consider whether you can direct the client to any external resources or agencies for further advice and support. (C) The basis of the agreement and the client care letter

31. The agreement between barrister and client is contractual. This means that:  the barrister is bound by the agreement and may be liable in contract for failure to perform;  it should be clear what is to be done under the contract, the charging rate and any other special terms that may be agreed (note your general duties under rC22 in addition to the public access rules);  the barrister will be able to sue for fees.

32. There are a number of things a barrister must inform his client about at the outset of the agreement. These are set out in rC125. They include warning a client that you are an independent practitioner and there may be occasions where a clash of professional commitments prevents you from carrying out an instruction.

33. A model client care letter is on the BSB’s website. Provided you have promptly written to your client in the terms of the model letter you will have complied with the notification requirements in rC125. Where the client has previously instructed you in respect of the same matter it may well be unnecessary for you to provide a full client care letter in respect of every new instruction received. Barristers must still ensure that the fundamentals of the client care letter are set out in respect of each new instruction i.e. the work that is to be undertaken, the cost and the payment mechanism. Other matters which you are required to inform your client about, such as the barrister’s limitations (if any) with respect to litigation, how to complain and 12 the fact the barrister may have to withdraw can be covered by referring the client to the original client care letter.

34. It may also be possible in limited circumstances for you to enter into a retainer or novel fee arrangement with a public access client. However, care should be taken to ensure you continue to observe your general Handbook duties around independence and conflict of interest. (D) Non-discrimination rules

35. In deciding not to accept an instruction, you should be mindful of rC28 of the Handbook. This states that you must not withhold your services or permit your services to be withheld: a. on the ground that that the nature of the case is objectionable to you or to any section of the public; b. on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to you or to any section of the public; or c. 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.

36. rC12 states that a barrister must not discriminate unlawfully against, victimise or harass any other person on the grounds of race, colour, ethnic or national origin, nationality, citizenship, sex, gender re-assignment, sexual orientation, marital or civil partnership status, disability, age, religion or belief or pregnancy and maternity.

37. The effect of these rules is that, whilst the ‘cab rank’ rule does not apply to public access cases, you must not discriminate in the way you accept, refuse or carry out public access instructions. Potential clients may feel aggrieved if a barrister refuses to take on a case and may allege that they did so for improper reasons. It would be prudent for a barrister refusing a case to make a brief note of the reasons for so doing in case this is questioned in future. (E) Withdrawal from a case

38. rC25 to rC27 of the Handbook highlight the scenarios where a barrister must or may cease to act and return instructions.

39. In addition to the usual reasons for withdrawal from a case, barristers are required to cease to act in a public access case where they have formed the view (for instance, as a result of receiving further information about the case) that it is in the 13 interests of the client or in the interests of justice for the client to instruct a solicitor or other professional client.

40. If, as a result of being told that you cannot continue to act without a solicitor or professional client being instructed, the client instructs a solicitor or other professional client, then you will be able to continue to act. It is open to you, therefore, to give the client the opportunity to instruct a solicitor or other professional client before you finally withdraw from the case.

41. In a public access case, the issue of withdrawing from a case will only arise once you have accepted the instruction. That will usually be when the client care letter is sent. You will need to take care in deciding whether to withdraw not only because you owe a duty under the Handbook to act in the best interests of your client, but also because you may owe them contractual duties. Unless your decision to withdraw is justified by your obligations under the Handbook you are likely to place yourself in breach of your contract with the client.

42. It will therefore very rarely be appropriate for you to withdraw where there is simply a difference of opinion between yourself and the client. In particular, the fact that a client legitimately rejects your advice on tactics or a settlement will not of itself justify you in withdrawing from the case; nor does the fact that a client may raise a minor complaint or question about the service provided by you. Where such disagreements arise, however, you would be prudent to make full attendance notes of the discussion and have them agreed by the client.

43. A barrister acting for a client who is a party to proceedings must bear in mind the particular difficulties which the client might encounter if the barrister withdraws. A hearing may be imminent; or the client may experience real difficulty in finding a solicitor willing to take on the case. Where there is doubt, or a difference of opinion as to whether you should withdraw, and withdrawal would or might cause difficulties for the client, it would be prudent for a barrister to contact the Bar Council Public Access enquiries line (0207 611 1472) for guidance.

44. Where you consider that you are required to withdraw and it appears that, by reason of the proximity of a hearing, a client may have difficulty finding another lawyer to take on the case in the time available, you should provide such assistance as is proper to protect the client's position. This can include: a. applying to the court for an adjournment if it is necessary to withdraw during the course of the hearing; b. drafting letters for the client to send to the court and the other side seeking an adjournment; 14 c. providing supporting letters for the client explaining that, for professional reasons, you have had to withdraw and, so far as this is possible without breaching confidentiality or prejudicing the client's position, explaining the reasons; d. where the matter is urgent or it is otherwise appropriate, contacting solicitors or other suitable intermediaries who may be willing to take on the client's case. (F) Complaints

45. The Handbook requires barristers to have in-house procedures for dealing with complaints (rC99-rC109). Such procedures can be a useful source of feedback to Chambers and also a way of retaining client goodwill when mistakes occur. Public access work may result in Chambers receiving a substantially greater number of complaints from clients, which may or may not be legitimate. However, all such complaints should be addressed and acted upon within an appropriate timescale. 46. You should have regard to the BSB’s guidance on complaints handling. In particular, you must: a. ensure that the client is told about the procedure in the client care letter; b. deal with complaints promptly and according to that procedure as they arise; c. inform the client that, if they are dissatisfied with the way in which the complaint has been handled, they may refer it to the Legal Ombudsman. 

[Employment Barrister - myBarrister]