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Mark Fell explains how to handle diary clashes ethically while protecting the bottom line. Christopher Convey alerts the Bar to the new money laundering guidance
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.
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
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:
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).
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
Mark is a member of the Bar Council’s Ethics Committee. He practices from commercial Chancery set, Radcliffe Chambers, where he specialises in tax and financial services.
Christopher Convey is a business crime practitioner at 33 Chancery Lane, a member of the Bar Council Ethics Committee and Chair of the Money Laundering Working Group.
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.
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
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:
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).
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
Mark Fell explains how to handle diary clashes ethically while protecting the bottom line. Christopher Convey alerts the Bar to the new money laundering guidance
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