Gifts and entertainment

You are at the end of your tax year and note that a particular firm of solicitors has sent you an increase in work and your clerk has managed your diary well. You intend to buy both a gift but want to make sure you are not in breach of the Code of Conduct.

The good news is there is nothing in the code to prevent you from giving such gifts. However, there are things that you will need to consider. First, you need to ensure that any gift is of modest value and proportionate. In the case of the solicitor it is important that the gift is not construed as a referral fee which is prohibited under Rule C10. If the gift is in the form of corporate entertainment it too must be proportionate (gC20). In both scenarios the gift cannot be in the form of cash (gC18.3).

In some overseas jurisdictions giving gifts is accepted common practice. The test to be applied here is whether the gift is reasonable and justified. Such gifts cannot be linked to promises of future work and if they are to be given there must be clear justifiable reasons for doing so.

The giving of gifts to a clerk is a sensitive issue that arises most notably at Christmas time. Individual chambers have different policies, many of them informal, but it is good practice to have a policy setting out guidelines both for members of chambers and the clerks team. Again, the gift should be of modest value and proportionate. Giving gifts to someone who by the nature of their role can be in a position of influence, for example in the distribution of work, can run contrary to chambers’ E&D policy and the rules concerning fair distribution of work (rC110.3.i). Even if it is not the intention, an unhealthy situation may have been created which could end up creating difficulties, particularly if a practice swings one way or the other on the back of giving such a gift.

What if a grateful client offers you a holiday on their superyacht? Or case of champagne? Or a box of chocolates? Or £100 in cash? You need to think about whether accepting the gift would breach your core duty to maintain independence (CD4). Would it affect your relationship with the client and undermine the overriding duty you owe to the court (rC3)? Or would it reasonably be seen by the public as undermining your independence (rC8)?

The Handbook does not impose an outright ban on receiving gifts from clients, nor does it set a maximum value on acceptable gifts. Instead, it says you should consider carefully whether the circumstances and size of the gift would reasonably lead others to think that your independence should be compromised (gC19). So proportionality is key. Even a holiday on a superyacht may not be disproportionate if it comes at the end of a very high-value matter that you have worked on for a long time. But you have to think very carefully about whether the gift might undermine your independence, or be perceived as doing so. Bear in mind:

• The value of the gift. Obviously, the more extravagant the gift, the greater the risk to your independence (or the public perception of it).
• The work you did.
• The stage your work has reached. If ongoing, the risks are higher than if the work has completed. Remember, even if the matter has ended, if you accept a gift, that may impact on whether you can accept future instructions from that client. Before accepting those instructions, you would have to be confident that accepting the gift in the past did not undermine your independence (or public perception of it). If you could not be confident of that, you would have to refuse the new instructions.
  

Gifts of money should always be refused. Not only can they be seen as compromising your independence (gC18.3), but they may also be taken for an unlawful fee arrangement or referral fee.

Tony McDaid and Clare Strickland are members of the Bar Council Ethics Committee. The revised Bar Council guidance on gifts and entertainment can be found here.