The only way is ethics

Clash of the cases

Diary management can be tricky. Maybe you have lots of bookings, but they often fall through. Most members of the Bar will know that mixture of relief and disappointment as a patch in your diary that started off looking like a litigation battlefield begins to resemble no man’s land. Or perhaps you have long trials which may overlap. (It is nice to be popular.) And it is frustrating to turn away work because you thought you were going to be too busy, only to find that you end up not having enough to do after all. At the same time, leaving a client in the lurch because you took on too many cases could cause serious harm to their interests. It might also be the last time you hear from them.

These are not just tricky questions of good administration and relationship management. Allowing clashing cases in your diary can also create ethical issues, logistical challenges and competing commercial interests. The Bar Council Ethics Helpline often gets asked for advice about issues surrounding diary management. Before you call, it is worth checking the Bar Standard Board’s guidance (‘Clash of Hearing Dates (Listings)’) on its website, or the Bar Council Ethics Committee’s recently updated, separate guidance (‘Clash of Cases and Conducting Two Cases in Court Simultaneously’), available here.

Some sensible strategies

You should, of course, do your best to avoid diary clashes in the first place, including telling your client if they would be better off booking another barrister. Even so, there are circumstances where you can accept two cases which may overlap. For example, where two cases are sufficiently far into the future that a clash is unlikely to occur, you can ask the clients whether they want to instruct you bearing in mind the potential clash. If they still want to proceed, you will need to make sure they are properly informed of the relevant timings and the point at which a decision will need to be made about whether to stick with you. Make sure you give proper thought to the amount of time clients will need to instruct someone else. It is a pleasing experience if a loyal client is keen to stick with you. But from an ethical perspective, it is important to guard against such a client’s over-optimism. Make sure you warn clients who seem to be hanging on later than is sensible.

Where you have to choose between clashing bookings, you have to decide which is most important to attend. In some cases one hearing may take precedence as a matter of law or procedure. In the absence of other factors, the BSB has suggested these rules of thumb: (a) criminal takes precedence over civil; (b) part-heard cases are likely to trump new matters; and (c) and fixed date hearings may take precedence over ‘floaters’. But ultimately you have to judge what is best in the circumstances. Don’t forget to take into account the needs of any vulnerable client and access to justice considerations.

The Bar Council’s guidance acknowledges the common practice of barristers accepting a second diary booking on the basis that they are currently not available, and will not become available unless an existing commitment falls away, often with another barrister booked to cover if the first barrister is unable to attend the hearing. This is fine so long as the decision as to your availability is made at a time which ensures that the client’s best interests are served and you have enough time to prepare for the hearing properly.

The golden rule is to always think about what is in the best interests of your clients. Of course, that approach makes long-term commercial sense anyway. ●

Mark Fell is a member of the Bar Council’s Ethics Committee

Money laundering, terrorist financing and the Bar

In response to the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations, and following HM Treasury approval of the Legal Sector Affinity Group Guidance (LSAG) in March, the Bar Council has revised its Anti Money Laundering & Counter Terrorist Financing Guidance (AML/CTF).

In addition to a guide to the law and how it applies to the Bar, the guidance, written by practitioners for practitioners, contains a number of case studies (Annex 5). Set across a range of practice fields, they address typical issues that you might face, such as:

• Can I accept payment from my client?
• Should I undertake customer due diligence (CDD)?
• Can I make use of my instructing solicitor’s know your customer (KYC) documents?
• How do I apply a risk-based approach to my obligations under the regulations?
• Am I required to make a suspicious activity report (SAR)?
• Will making an SAR breach my client’s legal professional privilege?

It also contains a guide to assessing risk for the purposes of the regulations (Annex 1); a list of common warning signs (Annex 2); and a basic guide to CDD (Annex 3).

Essentials: what you need to know

• You owe an obligation not to become involved in conduct involving money laundering or terrorist financing. In Bowman v Fels the Court of Appeal held that involvement in the ‘ordinary conduct of litigation’ does not count, which will mean that most of the things that you do as a barrister will not trigger AML/CTF obligations. However, you should be alert to circumstances that may take litigation out of what can be considered ‘ordinary’.
• Where you are instructed in relation to financial or real property transactions or provide tax advice you need to be able to determine whether the service that you are providing to your client involves you participating in that transaction or its preparation or execution. If it does, then you are subject to the Regulations. Consequently, you will have additional obligations, including:
  • having in place AML/CTF policies, controls and procedures;
  • conducting risk-assessments in relation to work within the regulations;
  • undertaking CDD before acting;
  • keeping a record of your compliance with the regulations; and
  • making disclosures of suspicious activity.
• Note that, in approving LSAG, HM Treasury confirmed that the ‘provision of legal advice’ would not generally be viewed as participation in a financial transaction for the purposes of the regulations.
• You need to know how to recognise the risks of money laundering and terrorist financing, how to assess those risks and how and when to take the correct and necessary action to mitigate those risks.
• You need to know when you are obliged to make an SAR (and how to make one) and when you cannot.
• You must act in compliance with the AML/CTF requirements of the Bar Standards Board and BSB Handbook.

Be aware or risk 14 years in prison

The law is in many respects broadly defined but the consequences of failing to comply can be severe, including criminal penalties of up to 14 years’ imprisonment.

In addition to reading the full guidance on www.barcouncilethics.co.uk you can also call the Bar Council’s Ethical Enquiries Service for immediate, one-to-one support for all Bar Council members and barristers’ clerks.

Christopher Convey is a member of the Bar Council’s Ethics Committee