BPTC Conference Skills 2 — Questions and Answers
Question 1: A client instructs their barrister to pursue a claim that the barrister considers has no reasonable prospect of success. What should the barrister do?
- Follow the client's instructions without question
- Advise the client clearly and honestly that the claim has poor prospects, explain the risks including adverse costs, and if the client still wishes to proceed, consider whether continuing to act would breach ethical duties (Correct answer)
- Refuse to act immediately without discussion
- File the claim but include a disclaimer that it is unlikely to succeed
Correct answer: Advise the client clearly and honestly that the claim has poor prospects, explain the risks including adverse costs, and if the client still wishes to proceed, consider whether continuing to act would breach ethical duties
The barrister owes the client a duty of honest advice (CD3, CD7). They must explain that the case has poor prospects and outline the risks, including potential wasted costs orders and adverse costs. If the client insists on proceeding, the barrister must consider whether continuing would involve misleading the court or amount to an abuse of process.
Question 2: During a conference with a client in a criminal case, the client reveals information that suggests a third party may be at risk of harm. What should the barrister consider?
- Ignore the information as it is protected by legal professional privilege
- Consider whether an exception to confidentiality applies, such as the prevention of serious harm or crime, and if so, take appropriate action while seeking guidance if needed (Correct answer)
- Immediately call the police without consulting the client
- Tell the client to handle the matter themselves
Correct answer: Consider whether an exception to confidentiality applies, such as the prevention of serious harm or crime, and if so, take appropriate action while seeking guidance if needed
While legal professional privilege and the duty of confidentiality are fundamental, they are not absolute. If there is a real and imminent risk of serious harm or a crime being committed, the barrister must consider whether an exception to confidentiality applies. The crime/fraud exception may apply, and the barrister should seek guidance from the BSB Ethics Helpline if time permits.
Question 3: What is the role of the instructing solicitor during a conference with counsel?
- The solicitor has no role and should not attend
- The solicitor facilitates the meeting, provides background context, takes notes of advice given, and helps ensure the client understands the barrister's advice (Correct answer)
- The solicitor acts as a witness only
- The solicitor makes all decisions on behalf of the client
Correct answer: The solicitor facilitates the meeting, provides background context, takes notes of advice given, and helps ensure the client understands the barrister's advice
The instructing solicitor plays an important supporting role: they introduce the client, provide context and background that may not be in the papers, take a detailed attendance note of the advice given, help translate legal jargon for the client, and follow up on action points after the conference. Their presence ensures continuity of the client's legal representation.
Question 4: How should a barrister handle a situation where the lay client and the instructing solicitor disagree on the strategy for the case?
- Always side with the solicitor as they are the professional client
- Listen to both perspectives, provide independent professional advice on the best course of action, and remember that ultimately the lay client makes the key decisions about their own case (Correct answer)
- Refuse to give advice until they agree
- Withdraw from the case immediately
Correct answer: Listen to both perspectives, provide independent professional advice on the best course of action, and remember that ultimately the lay client makes the key decisions about their own case
The barrister must act as an independent adviser. While respecting the solicitor's professional view, the barrister should provide objective advice on the merits of each approach. Key decisions (whether to accept a settlement offer, whether to give evidence, whether to plead guilty) belong to the lay client, not the solicitor.
Question 5: When conducting a conference in a family law matter, what additional sensitivities should a barrister be aware of?
- Family cases require no special sensitivity as they are routine
- The emotional nature of family disputes, the impact on children, vulnerability of the client, and the court's focus on the welfare of the child as the paramount consideration (Correct answer)
- Only financial matters need to be discussed in family conferences
- The barrister should avoid discussing children to prevent emotional reactions
Correct answer: The emotional nature of family disputes, the impact on children, vulnerability of the client, and the court's focus on the welfare of the child as the paramount consideration
Family law matters require heightened sensitivity because they involve deeply personal issues such as relationship breakdown, arrangements for children, domestic abuse, and financial uncertainty. The barrister must be aware that the client may be vulnerable, that children's welfare is the court's paramount consideration under the Children Act 1989, and that a non-adversarial approach is often most productive.
Question 6: At the conclusion of a conference, what should the barrister ensure has been done?
- Simply end the meeting and leave
- Summarise the advice given, confirm the agreed next steps and who is responsible for each action, check the client has understood the advice, and address any remaining questions (Correct answer)
- Send the client a bill immediately
- Ask the solicitor to explain everything again
Correct answer: Summarise the advice given, confirm the agreed next steps and who is responsible for each action, check the client has understood the advice, and address any remaining questions
A well-concluded conference includes a clear summary of the key advice, confirmation of the agreed strategy, identification of next steps (with deadlines and responsibilities), and verification that the client understands the advice. The barrister should invite any final questions and ensure the client leaves with clarity about what happens next.
BPTC Conference Skills 2
A client instructs their barrister to pursue a claim that the barrister considers has no reasonable prospect of success.
What should the barrister do?