Refusing work in criminal cases and in respect of Plea and Case Management Hearings

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The Professional Standards Committee (PSC) has been asked whether it would be a breach of the Code for barristers to refuse work in a series of particular circumstances.

In brief, the PSC has concluded after a special meeting held on Tuesday 13th September 2005 as follows:-

1. Rule 604 (b) of the Code provides that a barrister is not obliged to accept instructions other than at a fee which is proper having regard to

(i) the complexity length and difficulty of the case,
(ii) his ability experience and seniority and
(iii) the expenses which he will incur.

2. Until 15 November 2003, legally aided criminal defence work was deemed by the Code to be at a proper fee. On 15 November 2003, the Bar Council decided that criminal defence GFS cases should be excluded from the provision deeming them to be proper fees.

3. The Code has never contained a provision deeming criminal prosecution work to be at a proper fee. It is, therefore, governed by the same provisions as all other kinds of work.

4. In deciding in any particular case whether a fee is ‘proper’, a barrister must consider 2 questions:-

(1) Whether he/she in good faith regards the fee as proper having regard to the three specified factors in Rule 604(b); and

(2) If in good faith he/she does not regard the fee as proper, whether he/she is acting reasonably and justifiably in reaching that decision.

5. Whether a fee is proper, and the questions set out above are matters of fact, which will vary from case to case. This must be kept closely in mind in considering the questions in each case.

6. Where fees are actually reduced on a particular date, barristers are unlikely to be vulnerable to an allegation that they are in breach of the Code in declining affected work after that date.

7. Where fees are not reduced, it will obviously be less easy to demonstrate that an unreduced fee is not proper. The tests set out above must be applied carefully in each case before a barrister makes a decision to refuse such work in any particular case.

The position of pupils and pupil supervisors

The PSC has been asked by the Pupillage Board to remind practitioners in the context of the above guidance that:-

(1) A barrister who is a pupil supervisor with a pupil must not allow any decisions with regard to the acceptance of new instructions to affect or disrupt the pupillage training which the pupil supervisor is obliged to give.

(2) Whatever decisions may be taken, the pupil supervisor remains under an obligation to ensure that the pupil receives the required training so that the pupil can in turn apply him/herself diligently to the pupillage and properly complete the checklist and of course the pupillage.

(3) Similarly, it is for the Head of Chambers to ensure that, if any pupil supervisor in his/her chambers makes a decision to refuse work, arrangements are in place which allow pupils to be properly trained.

(4) Pupils have a legitimate right to proper training irrespective of any such decisions which a pupil supervisor may take, and that right should be fully recognised and respected, regardless of any steps which may be taken over the acceptance or refusal of work.

The respective duties of pupils and of pupil supervisors in this context are set out in sections 801 and 804 of the Consolidated Regulations and paragraphs 1.2 and 1.3 of the Pupillage File 2004/2005. The duties of Heads of Chambers are set out in paragraph 1.4.

Professional Standards Committee
15th September 2005