BTT: PROFESSIONAL ETHICS 2020

PROFESSIONAL ETHICS:

DEVELOPING EXAM TECHNIQUE SAQ

SAMPLE MARK SCHEME

PLEASE NOTE: This mark scheme is intended to draw your attention to the relevant parts of the
Bar Standards Board Handbook and associated materials to assist in your understanding and
practical application of ethical issues. This is not intended to be a model answer for the purpose
of the forthcoming assessment and should not be taken as an indication of the likely content of
any such mark scheme.

The details in square brackets are for reference only and need not be included in a candidate’s
answer, except for the references to the Core Duties.

Part A

Maximum 5 marks (of 7.5 available)

1) Ansell must observe her duty to the court in the administration of justice (CD1) which

a. includes an obligation to not knowingly or recklessly mislead the court [rC3.1]

OR

b. Knowingly misleading the court includes inadvertently misleading the court if you later
realise that you have misled the court and you fail to correct the position [gC4]

(1 mark for CD AND either (a) or (b))

2) Whilst she has a duty to act in the best interests of her client (CD2) this is subject to her duty to
the court [rC4] (½ mark)

3) Here in light of what she has witnessed, Ansell knows that in her closing speech she
inadvertently misled the court about her client Paul Edwards (½ mark)

4) Even if it is strictly true that he has no previous convictions, the assault Ansell witnessed wholly
undermines his statement that he deplores violence against women.

(1 mark for clearly setting out how the court has been misled)

5) The duty to correct the position continues for the duration of the case [gC4] (½ mark)

6) Therefore if Ansell does not correct the position she will be in breach of CD1 (½ mark)

7) She should explain to the client that she must tell the court what she saw as otherwise she will
be in breach of CD1 (½ mark)

8) This information was not obtained during the course of instructions so does not require the
client’s consent to disclose [gC8] (½ mark) however the client may request that she does not
disclose it (½ mark)

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BTT: PROFESSIONAL ETHICS 2020

9) It he does so, then she must withdraw (½ mark) as she is being asked to act otherwise than in
accordance with the Handbook. (½ mark) [rC21.6 and rC25]

10) She should explain the reasons why she is withdrawing to her solicitors [rC27] (½ mark)

11) If the client does consent, then Ansell can continue to act and will tell the court (½ mark)

Part B

Maximum 5 marks (of 7.5 available)

1) Ansell has been charged with offences which involve the Proceeds of Crime (½ mark) so
you must take care not to become involved in conduct that involves money laundering /
activity that takes you outside of the “ordinary conduct of litigation” (½ mark for sensible
reference to the Anti-Money Laundering Guidance for the Legal Sector or similar obligations)

2) You must not enter into the arrangement proposed by Ansell (½ mark) because to do so
would involve you in a money laundering / proceeds of crime offence (½ mark) [AMLGLS
section 6.4.3]

3) If you entered into the arrangement you would be acquiring criminal property, namely money
that is likely to be the proceeds of drug dealing [AMLGLS section 6.3 and 6.4.3] (½ mark) as it
is apparent that Ansell does not earn enough money to have £5,000 readily available and she
was unable to account for the cash found on her when arrested (½ mark)

4) You would also be in breach of CD 3 as such an arrangement is clearly dishonest. You would
be assisting Ansell in obtaining bail under false premises and allowing her mother to be
dishonest also.
(1 mark for CD AND application)

5) You would also be in breach of CD 5 as the trust and confidence of the public in both you and
the profession would be undermined if they knew that a barrister was entering into such an
arrangement with a client.
(1 mark for CD AND application)

6) You would breach CD 4 as you must not do anything which could reasonably be seen to
undermine your independence [rC8]. Lending money to a client falls within this category
[gC18] as your relationship has gone beyond that of client and legal representative.
(1 mark for CD AND reference to gC18 OR other application)

Maximum 2 marks for points 4) to 6)

7) You must tell Ansell that you cannot do this (½ mark) and courteously explain why not as
your obligation to provide a good service is not negated by her actions (½ mark) [gC38]

8) There is no requirement to report this to the authorities (½ mark) because the information was
obtained in conference so is protected by Legal Professional Privilege (½ mark) and it was not
made in furtherance of a crime as you rejected Ansell’s offer (½ mark) [AMLGLS section
6.7.2]

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