*/
What to do if a grateful client offers you a holiday on their superyacht? A guide to your professional obligations
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:
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.
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:
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.
The age of criminal responsibility, extreme weather and conflict resolution – plus, new protocol for reporting bullying at the Bar
By David Green
Mário Barroso, Head of R&D and Method Development at AlphaBiolabs, examines the forensic science underpinning hair drug testing, its evidential scope and limitations, and why it remains the gold standard for evidencing patterns of drug use in family proceedings
Unlocking your aged debt to fund your tax in one easy step. By Philip N Bristow
Clement Cowley, Partner at The Penny Group, discusses the upcoming changes to pensions and Inheritance Tax and the potential impact on your financial future
Save the Children UK is the latest charity to benefit from a £500 donation from AlphaBiolabs via the company’s Giving Back initiative
Barrister apprenticeships – shortly to provide the fourth pathway to the Bar – are an ideal opportunity to support local talent and ‘grow your own’, say Tim Coulson and Dr Jane Dennehy
Solicitor General Ellie Reeves KC MP discusses her decade as a trade union and employment law barrister, the demands of life as a Law Officer and the number one priority shaping her work. Interview by Anthony Inglese CB
A decade of reviews and research has disrupted accepted thinking in the search for causality. Suicides following abuse have overtaken domestic homicides. Is the law keeping up? Professor Susan Edwards KC (Hon) examines recent cases and the obstacles to successful prosecution
Why every major sporting event needs an anti-corruption policy. By Louis Weston
At least not that way, says Richard Paige