Hello and a very warm welcome or welcome back. As I'm hoping to uh this uh compilation of videos that are designed to assist you uh in your attempts to become uh credit police station representatives, which I'm sure that you will succeed. Uh Once you've actually watched these and done the research that's necessary. Uh I'm Matthew Hickling. I introduced myself in the first of the videos in this series. And um so without further ado, I just add that um I've obviously been in the police and also a duty solicitor and high rights advocate. So, um I do have a little bit of knowledge, I've also um been involved heavily in the accreditation of police station reps. And so, um I've got some experience of being on the test board and assessing portfolios and also um examining. So let's now have a look at what the video is all about um this time. Uh And we are at the police station, so we are suitably attired, uh which means that we look professional and uh we mean business. Um Yeah, pajama bottoms. No, just kidding. Um So we, we are um presenting ourselves in a way that is, um, professional at the police station. Um, we've got a couple more of these at the police stations to do after that, I'll consider whether to just take the tie off and we can be back in the office. But at the moment, we are not, we're at the police station. Um, this is part seven professional ethics, the essentials. We're not going to be dealing with them the entire scope of professional ethics that apply to solicitors um and or barristers. Um But uh we are going to be having a look at what I think is essential for um the accreditation scheme and also the assessments. Um and also with the benefit of what I know has come up uh in the past uh with um assessments and uh with, with, with, with, with both passing and failing people. So, um this uh video is in the uh compilation of at the police station which I've already mentioned. There's six compilations of uh videos uh in the series number one is just compiled. It consists of one video um and the rest are, are multiple videos and here we are in the section four and we are now down at the seventh uh video in section four, the previous one was giving advice to a client. Uh and before that consulting a client, etcetera. Well, you can see those as ever. Um We have our learning objectives. I'm not going to talk you through them because you can pause the video and read them. Um And that is the learning objectives for your knowledge and your learning outcomes are for your skills. Uh And this is what the video it is designed to prepare you for. These two tiles will be repeated at the end of this video. So you can pause the video again, have a look at them, read through them and make sure that we have covered everything to make sure that you're equipped to do the task. So what have we got then in part seven, professional ethics, the essentials um that we've got four little parts to it. Uh So we've got principles of conduct, uh conflict, uh confidentiality and disclosure and gross professional errors. So it's all about professional ethics. They can be tricky. It's a question of judgment very often when these situations present themselves to you. We're not going to be spending a lot of time on the obvious problems that and issues that come up, we're mentioning them of course. Um but I'm going to be dealing with the more nuanced uh issues that have come up um in the course of the um assessments for the accretion scheme um and also particularly in portfolios. And so what we're going to be doing is focusing on the essentials, which is what it says on the tin. So conduct principles then uh these are pervasive, the uh code of conduct for solicitors is constructed um to have it sort of starts off if you like with, uh, principles of, uh, conduct. Um, and these principles are sort of, they're fairly general. They're not specific. They don't really say, oh, do this or don't do that? They basically say, look, have you thought about this? Is this a consideration? And as I said very often it's a question for your judgment. You can look at the rules and the codes of conduct and think. Well, I'm not actually in breach of those, I don't think, but am I am I actually aligned with the principles of conduct? Um So it's almost a back to basics really, they are pervasive. They are if you like that from which the code of conduct flows that from which the rules flow. And that's why they're just a little bit vague. And as far as your judgment is concerned, always in uh professional practice, whether it be ethics or whether it be anything else advising a client or whatever it may be. Um As long as you've thought about it, you've, you've got some good sound reasoning behind it. It might not be the same decision that I would have come to in the circumstances by the look of it. But um as long as it's not an unsound decision, an unreasonable decision, as long as you've taken everything relevant into account and you've not applied irrelevant factors in your decision making, then we, it's likely that different lawyers may come up with slightly different interpretations of situations and slightly different applications um of the rules. So in a sense, it, it, it, I'm not trying to be permissive with this. I'm just trying to say the reality um is that we need to be applying these but also to be careful with them as well. Um to make sure that we, we, we do uphold the principles of conduct. So the first principle of conduct is that we must act in a way that upholds the constitutional principles of the rule of law and the administration of justice there. I read it out completely because it is uh number one of the principles of conduct and it is uh the one that where two or more principles may be in conflict. This is the one that takes precedence. So this is if you like the one that uh that takes priority and what are the constitutional principles of the rule of law? Well, there are many and they, they're varied for the purpose of our task in the police station. There's the presumption of innocence, um which still is clinging on. Um We've got the right to silence, which is again, clinging on. Um We've got the right to a fair trial. Um And of course, uh we must uh not um advise clients to break the law or breach the rules which can be challenging for uh litigators and advocates when cases come to court. We've got the procedural rules and where the rules are, are not, perhaps in the client's best interest to follow them, then we're not allowed to say, well, in that case, don't, um, we have to say, look, I'm not able to advise you to not comply. Um, because these are the rules, it is the law. Um, and then you can advise the client about what are the observations that, that you have. So, um, that is where we sit if you like um in the uh upholding uh constitutional principles of the rule of law, we must obey court orders, mustn't mislead the court and a lot of the sort of criminal illustrations if you like or I should say the illustrations in the context of criminal practice um arise in the courtroom rather than at the police station. Um But these are, this is sort of pervasive um primary principle if you like. Um So we almost, we always uh also um in, in uh our, our principles of conduct, um we must uphold trust and public confidence in the legal profession and the provision of legal services years ago, this was um expressed in a way that we mustn't bring the profession into disrepute. So, um I've put here must be polite, be professional at all times, show respect for other professionals, respect for the police, the the staff, custody, staff, appropriate adults and interpreters and we don't say anything offensive, we don't post offensive messages, send offensive emails and we don't get ourselves involved in all of that. Others may, if they want to because they may not be bound by the same ethical principles of conduct as we are. But, um, these are the sort of things that even if somebody sends you, you, um, a whatsapp and you think? Oh, that looks a bit bad. Well, I've got the same problem, you know, I just delete them. I don't forward them. Um, no matter how funny, I think somebody might find them. If they are offensive, then we do not participate. And that is a principle of conduct, upholding trust and public confidence and the public have a very uh high expectation of uh our conduct and also our ethics and quite rightly too. And I just remember what you do affects others. So what I do affects you, um, people think, oh, that's what solicitors are like and things like that. That's what lawyers are like. Um, and, you know, we have to constantly work. I think we've constantly worked over the years, uh to try to make sure that, um, the people, you know, have, um, a good opinion of us and, and respect of the work that we do. So that's the second principle of conduct. And then, uh we have for five more here on this. Next, I've put these all together, we must act with independence. We'll be looking at that in some detail because it relates to the rule, the code of conduct the rule against team where there is a conflict. We must act with honesty and that includes not only being honest ourselves but also not becoming a part of somebody else's, uh, lies or dishonesty and that can be engaged in the police station. You sort of think. Well, yes, you, you are at liberty, uh, to, uh, to be dishonest, you are at liberty to lie. Um, but I'm not. Um, and so we have to, um, sometimes, um, just be, be firm uh with the client in that respect. Um We must also act with integrity. Um And that's, I just put, if in doubt, do the right thing. Um If your mind is sort of saying, I don't, I, that, that, that I don't think that's right. I, I think I should be doing something about that or whatever then. Well, probably you should really. So, um, acting with integrity has many, many manifestations. We'll look at a couple at the police station in a minute because I'll give you a couple of real cases about these uh, that practitioners have told me about. We must also hear before we do that act in a way that encourages equality, diversity and inclusion. So this is not just uh a requirement for us to be compliant, it's a requirement for us to encourage uh these, these encourage equality, encourage diversity, encourage inclusion. It's actually a positive obligation on us and we must also act in the client's best interests at the bottom of the stack. But still, nonetheless, one of the principles of conduct and that of course, will be engaged as we go through this video. So I did say that we'd have a couple of case studies. Here's the first one. in private consultation at the police station, the client reveals to you uh that he has a Stanley knife blade concealed in a sock. It's nothing to do with the alleged offense. Uh The police have obviously missed it when they searched the client. Um And what do you do? Um Well, this is where all of these principles of conduct uh come into play. You can think of probably 23 or even four of them where you're thinking, I've got a feeling I'm not very happy about this. Um I probably ought to be doing something about it. So you'd be right. Um The danger here is that, uh, you know, you don't, it's not going to be your fault if the client uses it on, on, on somebody else. But it, it, it is clear that somebody has actually failed to find it where they have intended to find it. Um And this is a real case, the practitioner in this case, I think did the right thing spoke to the client and said, look, II, I think that, that this is not something, let me just explain to you now that I know that you've got it there. Um th th this is, you've revealed it to me. Um And you must understand that I'm here to act in your best interest. I'm here to help you with this case, but I'm not here to help you with that. Um And therefore, well, to cut a long story short, it was agreed that the client would surrender it to the, uh, the solicitor or accredited rep. I'm not really sure which one it was to be honest. Um, and the lawyer, let's call him a lawyer. Uh, then, um, said, right, wait here and took the, took the blade straight away, uh, to the custody sergeant. And this is where you need to have a good sort of professional working relationship with the police because, um, the lawyer then just, just put the blade down on the desk and said, please do not ask any questions. But can you get rid of that, please? Um, and this is where there needs to be some form of uh, understanding and everything was fine. But, um, there are risks involved there. So I'm sure none of you would be thinking, you know. Oh, well, it has nothing to do with me. I'm, I'm, I, I, I'm not here to, you know, to help the police. II, I think when you come to uh, consider uh the pervasive um, uh, principles of conduct, um, you would come to the same conclusion that was not in a portfolio case incidentally, that is these are ones that practitioners have told me about over the years. Uh when I've been running uh training courses, not only on this but also the, the criminal law generally and court work. The other case study. Um This is where the, uh the interviewers um suspended the interview and left the interview room to have a case conference about how it was going and what were they going to do next? And the officers left three exhibits on the table in the room. This is a real case. Um And the client then picked up the first one and started uh basically, he took it off the table, put it on the floor and put it under his foot, uh and started trying to cross it and destroy it. Um And again, um there are evidential issues here because you're now a witness to fact, um which is also compromising your ability to act as the person's lawyer. Um That because the next allegation will be um in connection, I would imagine with destroying the evidence. Um And you would not be able to participate in that because you are actually a um a prosecution witness potentially anyway. Um So the solicitor just tried to get the client to desist. That's the first thing. Uh the client uh was not interested in desisting and uh continued um and stated his intention in fact that, that, that they, if the officers were going to be so stupid as to leave them in the room, then he was going to make sure, um, that the evidence was destroyed to the best of his ability. Um, the solicit then went out of the room. Uh And, uh, she said, she, she called to the officers who were in the corridor, uh having a, a con flab uh having that case conference. Um, and she said, officers, excuse me and, and the officers basically said, wait, you were talking. And, um, she said, ah, no, but I just, and they just said, just wait. Um, and she thought, I, I literally was standing in the corridor with the client in the room destroying the exhibits, the officers refusing to speak to her, um, cut a long story short. Um, she sort of waited but looked anxious. Uh, and eventually, um, the officers, she said they seem to, um, make a thing and perhaps enjoy making her wait. Uh, and, um, that when one of them then came back and said, right, what is it? What do you want? She said, I just needed to tell you that the clients in the room, they're destroying those exhibits. Um, and the officers then realized their error. And, um, basically, one of them even suggested that it was her responsibility to ensure that the exhibits were protected. Um, which of course, um, which is why she spoke to me. Um, and I said, no, it's not your, not your responsibility, but you did the right thing to, uh, to make sure that you did something about it. And so these, these examples, uh, that, that come up these situations, um, you can't anticipate them all. You can't write a rule for each one. You've just got to have that knowledge of the principles of conduct. Um, and if you, like, just know that, um, we, we do need a, as lawyers, you know, we need to do the right thing. Um, and, um, even if it may, you know, compromise our fees or our, um, ability to, um, you know, to, to do the job that we're doing, um, there are um, these sort of pervasive Proprinal principles of conduct. So, in summary, then, um, as a police station rep, uh, you're subject to the sr a code of conduct in the same way as I am as a solicitor. Um, the seven principles of conduct are pervasive and they are that from which the rules are, are created. Um, and if two principles conflict, then the first principle takes priority that's upholding the constitutional rule of law and the administration of justice. Um, and I've just put there, don't stick your neck out, um, don't risk losing all of the hard work that you put into becoming qualified, whether it's to create a rep or a solicitor. And this is the view I've taken of all these things. It's, it's, it's, I put a lot of work a lot of hard work and years of work into, into becoming qualified as a solicitor. And I'm not about to put that all at risk because you want to behave badly, unethically unlawfully or whatever it may be. Um, and if you just cling onto that or hang on to it, um, then what I can say is that for all of the years that I've been as solicitor, it has held me in good stead and given me the right answer every time. So I hope that's been helpful. Um, as I say, there are no answers I'm giving you there's just principles, um, and a couple of examples and to say, I don't know what could come up. Um, I, well, I've just given you a couple of examples, I could give you a dozen more, um, of what, you know, practitioners have, have talked to me about, um, their experiences um, at the police station, some, uh, you know, quite, quite grim and some awkward ones. Um, but, but I'm hoping that that's enough just to illustrate it. Um And for you to recognize that, um, you know, there, there, there are no, um, there nobody can write every situation that's going to happen. So we've had a look then at the principles of conduct and now, um, we've got conflict to have a look at, um, and then we're gonna have a look at confidentiality and disclosure and finally gross professional errors. So let's have a look at conflict, the rule of conflict um has two manifestations. If you like the, the, the, the two species of conflict, the first is own interest, conflict um and its own interest conflict or a significant risk of conflict. I've put on this slide here. It's not potential conflict or potential for conflict. There is always potential for conflict. Um So if we talk about conflict, we talk about apparent conflict or actual conflict or significant risk of conflict. And this one is where your own interests, conflict with the client's best interests. And there's no exception to this. Um The client is not able to say, oh, yes, I consent. So I've given an example here, your client's accused of burgling your cousin's house or it could be assaulting a relative of yours or something like that. And you've got to think to yourself, II, I have an interest in this. Um and, and, and, and it would, it might, it could it affect, um Is there a significant risk that it would affect the advice that I give this person? And if the answer is yes, it's no good saying to the client? Well, look, yeah, actually that's my sister that you've allegedly assaulted. But you're right if I just carry on no, um there's no exception to this one. So, um own interest conflict is the first manifestation if you like of the rule of uh conflict. The other one is this one which is a conflict or significant risk of conflict between the interests of two or more of your clients. And this is the one that's going to be more relevant um, for the purpose of our video here because it's the one that comes up more often. And the question is, do the clients have, uh, what's called adverse interests? Is, are the interests of one adverse to the interests of the other? And an interesting question to ask yourself in this situation is, am I advising each of these clients in a way that I would do if they were my only client? In other words, if they're, let's keep it simple to say there's two co suspects or co accused at the police station and you are representing a both of them. Um Are you in fact advising each of these two clients in a way that you would advise them if they were your only client without having the other one? Or is the fact that you are either acting for the other one or contemplating acting for the other one? Is that impacting in any way or is it at a significant risk of impacting the advice that you would give uh to one or other of them? So these are the questions that you ask yourself. Have I been there? Yes. Have I been in that situation? Yes, I think you can ask any experienced criminal practitioner. They will tell you. Yes. Um This, this does happen and we do have to ask ourselves the right questions. Um, and what we don't do is it, it is, is rush for the fees. And I know there are difficulties here when you're employed by a firm and, you know, you're down there on a fixed fee or maybe two fixed fees. Who knows? Um, and these are not considerations, commercial, commercial considerations are not ethical considerations. Ethical considerations are completely removed from any commercial situation. So, it's, it is no good at the end of the day, um pleading that, you know, oh, well, of course, I had the fees to consider that's not relevant. Um So this is, these are the questions you need to ask yourself. Um And if you like when, when we think about professional ethics, um and, and we consider any sort of ethical issue, we always consider it from the client's perspective. And I would always, when I've been asked questions by practitioners who have said I was at the police station and, and I, I had this client who was there. So what I thought was, so did I do the right thing? I'm already thinking that client was my sister or that client was, was, you know, my cousin or that that client was, was a really good friend of mine. And what I'm asking the question I'm asking is from their perspective, were you doing the right thing? Not from yours, from their perspective? And that is if you like the way to resolve or begin to resolve or unravel any sort of ethical issue. And it's very difficult when you are the lawyer and it is your client. Um So it's sometimes quite useful to ask somebody else if you were the client or, or, or if this client were, you know, um, a relative or good friend of yours, um, obviously that you cared about, um then, you know, would that would, you would have been, would you, would you have been happy with that? Um And so a conflict or significant risk of conflict between two or more clients, conflict is easy to spot if, if you know, in advance that each accused person is blaming the other. So this, this is down to um disclosure from the police and the police may tell you, uh they may tell you what's happened at the time and make it very clear uh that um each of these is saying no, it wasn't me, it was them or it wasn't me, it was her, it wasn't me, it was him. Um, and, and, and in those situations you're, you're, you don't have a problem. You, I'm going, you, you, you don't have a problem because you just got to take one. It's, it's clear, it's obvious that the, there's a clear inconsistency, there's a dispute between the clients there. They are, they, they have adverse interests, the best interests of one is to, is to get the other one convicted and them to be acquitted and vice versa for the other one. So we act for one. And it is clear the issues arise then and I told you this was all going to be a little bit more nuanced than that because this, this is the one that everybody sort of said, oh, you know, you'll be able to tell you, you know, you can tell straight away and you can't, um, trust me, you can't always tell straight away. Um And if you don't know in advance, uh then you have got some decisions to make along the way. And those are the decisions that we are now going to be discussing in this video because they're not particularly easy. But if you apply the principles and rules of conduct, then you actually find a way through, uh quite nicely, but you've got to be able to do that. So the question I'm asking is, can we then ethically act for two clients who give accounts that are consistent with each other? Because if you remember what we've said is it's easy to spot if their accounts are different. Number one is saying it wasn't me. It was number two, number two is saying it wasn't me. It was number one. And so it's clear that there is this inconsistency and manifestly adverse interest between the two clients. But what if it's the same? Well, let, let's have a look at a case study because uh this is a real case study. It's actually from a portfolio that um that I was, um, had to be involved in uh in a, um on a modern moderation exercise test board. So, um, well, let's have a look at it. Two people then one male, one female. Um, th this is, these are just the facts of the case quite handily. Um, it was just a, a male and a female and they entered a sports clothing shop. uh, they immediately separated and went to different parts of the shop. Um, and the, the, the, the staff were, were immediate, this is, this is a, if you've worked in a shop and, and, and there isn't a sort of, you know, designated, um, a sort of a male section or female section. Um, you'll know that, that this is, this is perhaps slightly odd behavior. And so I, I think somebody was probably alerted from the beginning to sort of just keep an eye and the female, uh, was seen, uh, behaving a little aly as sort of, you know, very close up to the clothes, um, with, with hangers going and all sorts, they couldn't see exactly what she was doing but she had her own bag, um, but they couldn't see whether or not it was necessarily being filled or, or whatever. So they were trying to keep an eye but they couldn't really see much so well. She was pretty good. I think so. Um, so she shoplifted a number of items, I think about six items in, in total. Um, and she had a security tag removal device. And so where the, uh, where she could see that the might of clothing had a security tag on it. She was able to, uh, to remove the tag and you need a, you need a special little, well, give me for that. Um, and so then of course, the two of them came back together inside the shop. There wasn't enough at the time for the shop staff to do anything about it or detain them or whatever until as they left, um, the shop alarm activated. So there were panels by the front door that these, these picked up, um, a detected, uh, one of the security tags and, and that, of course, made them leap into action and the two, the man and the woman were quite surprised. So they were both detained by the shop. Um, so there wasn't any fighting or any chasing. Um, it did, they sort of came quite as it were and the female was found to have six items of allegedly stolen clothing, uh, in her bag. Um, and the security tag removal device was also, um, in, in her possession. I don't, I'm not sure if that was in the bag or not, but it was certainly in her possession. And what had happened was that she had failed to notice, uh, a second security tag and they do this sometimes they'll put a security tag on the waistband, perhaps of a pair of trousers, but they'll, they'll stick another one, up the trouser leg, um, or somewhere else. Maybe, you know, up a sleeve or something like that and she'd missed it. Um, and so there was still a security tag on one item of clothing and that had actually activated the alarm. The male, uh, was not in possession of anything, uh, incriminating. So, um, she was the only one with the bag. Um, and they were both, um, of the, the shop staff called the police. Um, and they were both, uh, detained and taken to the police station and you are now going to attend the police station and that's the disclosure that you've been given. So you go and see the female first. Well, you might be thinking, um, you know, she's the one probably gonna get a court appearance out of maybe fees. There's me saying don't worry about fees or think about fees, but it, it, it could maybe influence who you're going to see first, but I'm not sure it's a good idea. Let's, let's, let's just park that for a moment because we'll think about it a little bit later. So you see the female first and she basically says I've been caught red handed. Um, and, and, and I appreciate that. I fully accept that. Um, and I'm happy to, but obviously, um, uh, say what I've been doing. I I'm sitting in the clothes and I'll make it very clear that the male was not involved in any way. Um, and you say, well, that's ok, that's what you want to do. And that, that's fine. Um, and you're happy that, that she answers questions on that basis. According to her instructions, she's, she's been corporate at it. Um, and she wants to make it clear that, uh, that he wasn't involved in any way. So you then go and see the male and the male confirms he was involved. Um, and I didn't know what she was doing. I wasn't, wasn't involved in anything. Um And he, he says I'd rather not say anything unless I really need to. Um, and you say, well, actually you don't need to say anything because, um, she's gonna make it very clear that you weren't involved at all. Um And so, um, you can actually uh remain silent with impunity because, um, you know, there, there, there's no evidence to implicate you and she's going to make it clear that it was her and not you. And so you agree that, that, that he can say nothing. And so is that all ethically correct? Well, if you think, yes, that sounds absolutely fine. Well, welcome to the video. Um, and I'm very pleased that you chose to watch it. Um If you're already thinking, oh, I, I, I'm, I'm not really sure about this. Um, then well done because it, because you, you, you want to start thinking about the ethics engaged here. Um, and so, um, if it doesn't feel right to you then, um, good. Um, because this is a situation where the clients instructions are aligned. This is not client. Number one saying it wasn't me. It was number two or number two saying it wasn't me. It was number one. This is number one saying it was me. It wasn't number two and number two saying well, yeah, that's right. It wasn't me. It was number one. so I think, well, if, if there's an alignment between their instructions, then surely that's all right, isn't it? Well, it's not as simple as that you probably guessed. So let's go back and start again. Right. What legal advice did we give to the female? You're right. There wasn't any, we did not advise her of what to do. She advised herself. So she said this is what I want to do and we said, well, that's ok and we thought, well, that's ok because you're gonna, he's gonna be in the clear. Um, he's a client of mine as well. So you're gonna make it clear that it was you not him, you'd be caught red handed. What the heck anyway. Uh And so, well, yeah, but we didn't give her any advice. No, the portfolio cases require you to have given advice to a client at the police station. And if you're not going to give advice to a client then? Well, not only does it not qualify for a portfolio case, but you're not doing a job and here we have not done our job. So, if you were thinking, well, it doesn't sound right well done because you're, you're already thinking, well, we didn't give any advice. Um, and neither do we give him any advice either, by the way, if you think about it. So, what was it, what was in her best interest? What, what was in her best interest then what to do to give a full account? Um What if she gives a full account? It's, it, it says, yes, I'm happy to talk about what I've been doing. Well, she might then start talking about how she planned it, how she targeted that particular shop, how she saw how easy it was and how in the corner that she was out of sight. Um, and you might be sitting at the interview going, oh, hang on a minute. Wait, wait, wait, wait, this is feeling very uncomfortable. Now. Um, she might say, well, I prepared it. I, I've, she's gone equipped for theft. She's actually got this device from somewhere. Where did she get that from? Have you, have you, we didn't, we didn't even investigate that. We, we, we, we're not even, we even getting to grips with her account. And is she going to admit any other offending as well? Um And when you think about it you're thinking, well, how are they going to prove? These six items of clothing are all stolen from that particular shop? And this is with, with any shoplifting allegation. You're always thinking, how are you gonna prove, you know, in the absence of serial numbers now? Well, 11 item, yes, it can be proved. Um, but well, if she starts talking and admitting to things that would not otherwise need to be said in a a plea mitigation, then it could be that she's increasing the sentence that she would get and we went along with it without giving her any advice. So yes, it was wrong but she wanted to protect him. She want, she said, oh no, but but but and she's perfectly entitled to do that if she wants to it, she can say no iii I want to um would it be in your best interest? No, it probably wouldn't. I need to explain to her and say, look, I'm here for you, not for him. Remember you need to be advising a client as you would if that person were your only client in this matter. So you say I I am not here thinking about him, I'm here thinking about you and it would not in my view be in your best interest to answer questions because if you go in and start answering questions, there are other options. We think about those as video progressors. Don't worry. So I'm not happy about you going in and answering questions because I think actually the outcome of this might actually be worse for you. It could be, I suppose that it sort of, you know, leads to a diversion red disposal in the circumstances. I can tell you she had a string of form and it wasn't gonna happen, but depending on the circumstances, yes, you're thinking about all that. We did this in the last video. Remember? So you're thinking about a lot of things you're bringing them all together. Um But what you're worried about is that on the face of it, it looks like a bit of straightforward shoplifting. When you start digging down. If she starts saying too much, she could actually make this then look more serious than it looks at the moment and that may affect um the charging decision on it. So you say to that having explained all of that, she still says, no, that's what I want to do. I want to admit everything and I want to uh make sure that he is kept in the clear. If that's what she wants to do, she's got capacity. Um She has made an informed decision. Um but it is not a decision that you believe would be in her best interest. So you think, well, I'm going to consider whether or not I'm going to get her to sign, just to acknowledge that I have advised her about what the consequences of her decision making uh will be. Um, and because I don't want any suggestion in the future of her coming back and saying, well, you know, I was given some bad advice by my lawyer at the police station, so I, I'm not saying what is the right answer? What is the wrong answer? Um, you will have to wear it up at the time on the evidence, you're on the client and everything else. So we just, we're just looking at words on a screen at the moment. So we can't actually get a proper feel for what's going on. So whatever decision you make, as long as it is not manifestly unreasonable, as long as you can justify it, as long as, as long as you have taken into account the right considerations, then it, it, no one's going to argue with you even if it might have been something different, but it looks like it probably was maybe not what I would have done, but I'm, I'm not here, especially when I'm marking portfolios. I'm not, I'm not there to say, well, this is what I would have done. So you didn't do that and therefore you failed. No, no, no, no. It's basically, yeah, iiii I think by the look of it, it's not probably the line I would have taken, but you've justified it and, and you've explained your reasoning. And so yeah, um I, I, I'm not, I'm not here to say that was, that was wrong. Because it wasn't manifestly wrong or unreasonable for you to do it. So, if she wants to protect the male, fine, but we need to give her some advice and we need to advise her as if she is our only client and the same applies to the male because if he wasn't involved at all in the theft, why was he not advised to say so? I mean, he again has given himself his own advice. I don't want to speak about it. Well, that's ok because you just a minute, we've not given him any advice either. And why are we not challenging the evidence? What, why, why are we not saying to the police? Excuse me? I'm sorry. But, but what exactly is the allegation against my client? There's no, you're saying there's no evidence against him. He wasn't found in possession of uh any stolen goods. So, are you suggesting that this was a joint enterprise? So what is the evidence again of joint enterprise? Well, there may be, there may not be, I would say, well, you know, we've got reasonable suspicion but why weren't we challenging it? Why were we at least raising it or at least thinking it answer because it was all sorted. It's fine. She's going to admit it. And this is the point here, ask yourself if this client were my only client. Is this the advice that I would be giving and make sure you give advice and make sure that, that advice is independent because that is, if you remember one of the principles of conduct, we must maintain our independence. We can also think about it as objectivity if you like. And our sort of detached professionalism is, is, is what we're there for, to give a, an objective, professional view of things and maintain our independence. So if he wants to remain silent, um, it's gonna look incriminating. So the police are going to start thinking, well, we didn't think you were involved, but now you're going, now you're remaining silent. Um And you're then asking yourself, will that give rise to any other actions? Maybe that, that, that might, that might occur or, or any other? Um, you know, I don't know, flags that might be put against his name or whatever. So, is it in his best interest? He is perfectly entitled to remain silent. If he wants to, he has capacity, he's going to be making an informed decision. You will advise him and say, look, I'm just not satisfied that this would be in your best interest and you can explain that to him. He understands it and he says, no, I understand that. Thank you, miss tackling. I understand all of that you've said to me and I still, um, would like to get a comment and you say, well, that, that's ok. That's all right. Um But let me just make a note of that and consider whether or not it might be appropriate. I don't know, um, for you to ask the client to decide there will be situations where, well, which some are easier than others, to be honest. So some situations I'm thinking, I think I'd rather have a signature on this one, but I don't think I'm going to ask at the moment because, um, I'm just not feeling desperately comfortable about this at the moment. So, um, and there are others where you would say, well, yeah, if you'd like to just sign here. So again, I can't tell you what to do, what not to do. Just use your judgment, be cautious. Um And think and, and just make sure, uh that number one, you've given advice. Number two, the advice has been objective independent. Um and in the client's best interest. Um And number three, if the client doesn't want to follow that advice, I think, can I still act in the client's best interest? Uh Yes, I think I can, I don't think any other solicitor would, would be better equipped than me in this, in this situation. Um And therefore, um I'll be able to carry on, but I might just um make a proper attendance note of the situation and maybe uh at least consider whether or not the client should acknowledge that that is what the client wanted to do despite the advice they were given. So that's case study, we will be revisiting this case study. Um In the context of confidentiality in a moment. Um So hold on to that thought. So ethical considerations, then if you're contemplating acting for two or more uh clients at the police station, um it just can be helpful guide to, to ask yourself what does client number one say about their own involvement? Just so if, if, if you've got two clients there, you see one first and you say, what have you got to say about your involvement and what have you got to say about the other client's involvement? Um Are you saying that you're guilty or not guilty? Again, it's not always as simple as this. Um The client might give you an account and you might be thinking, well, II, I, I'm not sure whether that's actually guilt or whether or not there's a defense here. Um And so I'm not suggesting that on every occasion at the police station, you will be able to come to a definitive conclusion about what the client is saying about whether they're guilty or whether they're not guilty. But this is what we're striving for. This is what we, we're targeting. And we're saying, can I get to that situation where I can deduce whether the client is uh is saying that they're guilty or not guilty. And the next one is, what is this client saying about the other client's involvement? And again, um if you can't do this, then it is likely, I think that you're going to come to a conclusion that there is a significant risk of conflict. Um, but if you can come to these conclusions, then, uh, well, let's have a look at where it takes us. So there are four options here if it is clear enough for you to come to these conclusions. So number one says I'm not guilty and neither is number two. So as far as I know, neither of us is guilty, uh, of these, uh, accusations. Uh, the second option, number one says I'm not guilty. It was number two, who did it? Um, and the third option is number one is the one we had in, in, in a scenario, wasn't it? Number one says it was me. Number two had nothing to do with it. So that's the one we've already looked at in our case study. Um, and the fourth option is number one says we, yeah, we're both guilty. Yeah, we, we, we, we were both, um, equally involved or at least we were both, uh, involved. And so what I've tried to do, uh, here is just to come up with a notion that there might, it might be possible to come to these conclusions. And as I say, if you've got a client, I don't know, you might say, you know, it was self defense and you're thinking, oh, yeah. Really? Oh, yeah. I, I'm, I'm not really sure. Well, you might not be able to come to these conclusions in which case again, you've got, you've exercise your professional judgment on it. Um But if you can come to these conclusions as we did with our case study, you might, if you get a case like that, um, it's just helpful sometimes to, to, for you to think through it. Um, and to think through the principles of conduct. Um, so option number one then, uh I'm not guilty, but number two is not guilty. So this is the first client telling you about their involvement and number two's involvement, um there doesn't appear to be any apparent or significant risk of conflict here um provided it's the truth. Um It could be that it's not actually true. In which case you're thinking is number one trying to get me to send a message to number two to say, don't just deny everything. Um So these are other sort of ethical considerations that you have to bear in mind. But if it looks to be true, um I was thinking of a case where it was a shooting invite and uh the two people involved uh had made off in a, a two seater sports car. Um And it was an open top, I think, a two seater sports car. Um And so about 20 minutes later, four miles away, the police stopped and open top sports car that wasn't the right color, neither were the people. Um And um and, and, and the rest of them both. Um and it's looking clear straight away that they don't even fit the descriptions. Um And they say that they weren't ever near the, the vicinity. And so you're weighing up the disclosure, the evidence as well as your clients instructions and, and all of this is going on in your mind. Um that when you're contemplating acting for two or more clients, it gets complicated after two, which is why I'm gonna stick to two. So provided it's the truth looking like the truth. You're thinking that's ok. I'll probably act for both of them. They both seem to be saying it wasn't us. The evidence seems to back that up. And so I think probably what I'm gonna start doing is making some representations about the lack of evidence and whether or not they've been lawfully arrested and so forth. So that's option number one, the next option is I'm not guilty. Number two is guilty. So this would have been the situation um in our case study, had we gone to see the male first? The male would have said, well, nothing to do with that. If anyone, if she's been shoplifting, she's been shoplifting. So, um but I mean, but it, it, it's not me. Um now it may be uh in number one's best interest to, to speak to exculpate themselves and implicate number two, as I think probably it would have been um with the male in our case study. Um And so it, it it, it could be in number two's best interest. This is the client you've not seen yet, um, to say nothing. Um, if, uh, number two agrees that they are in fact guilty because this is flagging up a situation where you might get the first client saying, well, it wasn't me, it was her and she said, well, actually it wasn't me, it was him. Um, so you're already on the lookout for the disclosure that you've had trying to um uh make a decision that is this one where there is AAA apparent or significant risk of, of adverse interest. Um In which case, actually, I'll just take the, the first client and get somebody else out for the uh for the second client. So in this scenario, it's reflective of what we would have done. Had we seen the male first in our case study. What we did is we saw the female first and uh she said, uh I am guilty. Uh Number two is not guilty. So it may be in her best interest to say nothing and it may be in number two's best interest to speak, um excavate themselves uh and implicate number one. So you're already thinking, you know, are the interests of these clients adverse to each other? If it's, if it's in one client's interest to say nothing or the other client's best interest to uh do the other one up as it were. Uh then you're already thinking there could be adverse interests engaged here. Um And again, in any situation where client, number one is saying, client number two is not guilty, whether or not whatever client of is saying about themselves. If they're saying number two was not involved, you've got to be asking yourself the question. Are you trying to get me to go to number two in order to send them the message and say, look, you know, deny everything. So we're thinking carefully about everything uh along the way. Um And well, we, we're treading carefully through uh this um sort of this, this collection of ethical issues. Option number four then is it, it is uh a client number one saying I'm guilty. Number two is guilty as well where there's consistency here, if number two agrees that they are guilty as well and agrees that number one is guilty. But here you're probably thinking about different levels of uh involvement are the levels of involvement the same. Um Do they have a similar background and Interceed? And so we're talking about one, I can think of a case of mine where, you know, one they both said, yeah, you know, I am guilty. Um But one clearly was if you like the uh the more experienced uh very vastly more experienced criminal, uh The other one was um new on the block of crime. Um And so it's maybe looking in the inexperienced person's best interest to sort of just say look, I, I was brought along for the III I was, you know, not coerced but, but it was suggested that I should get into this and whatever. So again, you're thinking, is that a problem? Um So are there different levels of involvement? Maybe they were committing different offenses? And so you're asking all these questions and what about the weight of evidence? Because it might be that the evidence against one means that they perhaps should remain silent and maybe not be charged and the other one, possibly, um it, it might be if they're guilty while your starting point is probably don't say anything anyway, so you might make things worse. Um But if it's a situation where it's worth making a statement or something like this, then um again, you're advising these two clients differently, but the point is just anchor yourself that am I advising this client as if it were my only client in this matter? And that if you like is your, your anchor point, I just put a note in here as well on dealing with the police. So if you make an ethically based decision as to whether or not you should act for two co suspects at the police station, um If the answer is no, I'm just gonna take one of these, I'm not going to, I'm not, I'm not going to act for both. Um It's just, just not right and be decisive early. Uh, don't leave it, there's a, you know, wait and, and wait for the whole thing to develop. If you're, if you're leaning towards that decision, make that decision to let the police know. Um, it's better for the clients, better for both clients. Um, but both your client and the other person. Um And if it's, yes, I can act for both, uh and the police challenge you and say, well, you know, haven't you got a conflict here? Um, then just explain. Um, and I've had to do this on occasions, just say, look, I, I'm very familiar with my ethical principles of a code of gone. Um, and I've considered them carefully and have applied them and, um, as far as I'm concerned, it's, it, it is quite legitimate because the police will be worried about, um, you uh taking information from one person to another. Um And once I think you are known by individuals, it needs to be by individuals. Um then they will know that you are ethically compliant and, and, and you're not, um, somebody who will, um, you know, sort of be, um, sort of get yourself involved too closely with the clients. Um, but you don't discuss the matter any, in any further detail. You just say I, I've made my decision and, um, and II, I, I'm happy that ethically, um I connect to both of these. Um, and, well, they just have to lump it. Um, and if they've got anything, any other concerns they can let you know. So a summary of that, of conflict, um, which we've done quite briefly. Um, you know, we could spend probably half a day doing, uh, doing conflict, but I, I've made the main points here. So am I advising the client as I would, if it were my only client? That's your, that's your anchor point. If the accounts of two or more clients are not consistent, then of course, there's a significant risk of conflict. You know, this is, it wasn't me, it was her and she said no, it wasn't me. It was him if the accounts are consistent, is there nonetheless a significant risk of conflict? And that's the question that I've covered in this session the last 10 minutes or so. Um, ask yourself, does one client have interests which are adverse to the other? Um, and this is a judgment call? Um, and you have to make sure that, um, you take into account the right considerations, don't, uh, misapply the wrong ones. Um, and come to a not unreasonable decision on professional judgment. Um, and as I say, provided you do that, uh, then, uh, nobody can come back to you and say it was the wrong decision. They have to show why it was wrong. So, we've had a look at principles of conduct. We've had a look at, uh, the, the, the, the question of conflict. Um, and that difficult situation where client instructions are consistent, but nonetheless, we should not be beguiled into, into thinking that, oh, that's ok then, um, that we still have to ask those important questions. And so let's move on, have a look at confidentiality and disclosure because that's the next sort of relevant essential um, of, uh, of conduct at the police station. So, confidentiality and disclosure deal with confidentiality first, um, you must keep the affairs of a client confidential unless disclosure is required or permitted by law. This is not absolute. Um So there may be a requirement, um, or the client gives informed consent. Yes. Um, but remember once confidentiality is breached. So once you, once a client has waived their confidentiality and you've, you've given it to a third party, uh then they do not have any control over it anymore. Um It's, it's quite difficult to get a third party to agree that this will be confidential with them and if they, even if they do agree, um, it's never going to be watertight. So you consider, uh, that if you waive confidentiality, your confidentiality will be lost. There are other exceptions statutes. We've sort of half mentioned those already. So proceeds of Crime Act. Um, there, there are others, there's Taxes Act, the Terrorist Acts, um, all sorts of Acts of Parliament, um, that require us to make, um, protected disclosures, suspicious activity reports, things like that you've probably heard of. Um, we, there's also exception to prevent the client or a third party from committing an offense that would involve serious harm, uh, mental or physical harm to a third party. Um, or if uh there is a sufficiently serious threat to a child's life health or well-being, we don't just walk away from that. We, we, we, yeah, this is, I think a situation again, it's professional judgment, but at least if we know what the rules are and we can apply them. Um, and this is all consistent as you can probably see, um, with the principles of conduct. Um Court orders warrants, legal aid agency, things like that. Um And, and of course, our regulator, um, you know, the, the, the confidentiality, um it can be um, way it can be. There's an exception if, um, we have a court order, if it's a warrant, for example, that, that covers confidential information probably would need to be issued by a crown court judge. But, um, depending on what the warrant says, um and also our um, data um, is also open for uh inspection uh by um, the uh legal aid agency, but it's not just confidentiality, it's confidentiality and disclosure uh with the two come together. Um So they are part of one and the same. And so disclosure says we must disclose all information of which we are aware that it's material to the client's matter, material is the word here to the client's matter. Uh, no matter where the information came from, um, it's likely that a client, uh, should be the arbiter of what is material. So we ought not really to decide, uh, what is material. If it's clearly not material, then fine, you make a decision. If you're in doubt as to whether something is or isn't material to the client matter, then probably you should let the client decide. As I said to you, I'm thinking about my cousin, my sister. Do I think that you should make the decision or do you think, or do I think that you should tell her? So what this is, what I'm thinking about here? Would you like to make a decision about whether that's material sounds better to me? Um, and so might it reasonably affect their decision making? That's the question as to whether it's material, might it reasonably affect the decisions that they make? And if so then it should be disclosed if in doubt, disclose it to the client so the client can give informed consent not to disclose to them. But it's difficult to see how, um, this would be informed of the police station because we don't know enough. There, there, there are many examples of, um, you know, civil litigation and, and, you know, um, a professional practice generally, um, but they're not relevant for our purposes here. And so I'm not going to go off on a tangent, uh, talking about them. Um, you have, if you have reason to believe that disclosure would cause the client serious mental or physical injury. Then of course, we, we, we may be able to withhold information that would be material to the client that might affect the decision making. Um And it could be that disclosure is prohibited by legal restrictions imposed in the interest of national security. Um or the prevention of crimes, there could be some statutory uh prohibition um on the disclosure. And again, um this is not something that I've seen come up, um, in the, um, in the program, but the middle one there, um, is something that you do need to, uh, consider at least be aware of. So disclosure between clients. And if, if, if we, if we've got this situation where we're going to act for, uh, two clients or two or more, um, the duty of confidentiality to one client does not trump the duty of disclosure to another client if you act for them in the same matter. So if you can't go to client number one, not client number two and say I'm, I, I'm acting for client number one, but I can't discuss with you what they've discussed with me because, um, well, it's confidential. So, um, so I can't tell you, um, it's not one of the exceptions. Sorry, we just looked at the exceptions. It's not one of them. Um, and so it would be a breach of ethics because if we're saying this information would be material to your decision making and I'm not going to tell you what it is, but I'm going to be your lawyer anyway. I don't think you'd be happy if I did that to you. Would you? Um, and that is the point if I were your solicitor and said, said to you, I, you know, I, I've got some knowledge up here. Um, I'm not gonna tell you what it is. I think it would be material to you. I think it would affect your decision making. Yeah, but I'm not gonna tell you what it is that all right, then I'm gonna carry on being a lawyer. Um, so if the circumstance is not one of the exceptions, uh, then, um, well, you mustn't disclose it. Um, so if you've got, uh, uh, this information from one client, uh, you, you can't disclose it to another client unless one of the exceptions applies. And if you remember one of the exceptions was the client gives informed consent. So that's the one we're going to be looking at. Um, so it must not disclose and cannot act, it must decline instructions. And so if you're not in a position to give the client a disclosure as required by the rule of conduct, uh, then, uh, we mustn't act full stop. Um There are lots of other, um, so nuances to this about whether or not somebody else from the, the firm can act, but this is a very difficult one. It would probably need to be somebody from a different office who, um you know, we talk about information barriers um and someone with whom you would not have any um day to day contact um with uh and, or um any sort of community, day to day communications with. So, um it, it's a difficult one but all I'm going to say for that for that purpose is be guided by your firm on that because I don't know the, the construction or constitution of your firm or whether or not um it is actually um a geared up for these sort of things or built for it. So, um I'm gonna bypass that because I'd be speculating about um the firm uh that you would be working for. So, guidance to the profession, nondisclosure is centered around civil uh civil law examples. Um I have actually been on the sr a website within the last 24 hours just to double check that statement we're in uh June 2023 at the moment. Uh And I can tell you there are no current published examples for crime uh that I can find. So let's go back to a case study because it's one we're familiar with already the man and the woman in the sports clothing shop and we've, we've dealt with the conflict side of things um without coming to any particular conclusion because of course, we haven't, we've been speculating about what they might say, what they might do, what they might not. Um, and now, um, I'm gonna say, who should we see first? Well, let's have a think about that because we saw the woman first, didn't we? Because the female was the one who is actually alleged to have been shoplifting. But, and so it was a question of I'm guilty. He's not, had we gone the other way around and seen him first? He said, well, you know, it wasn't me, it was her. I think probably you've, you, you've got more alarm bells ringing in that situation. So you ought to have had the same alarm bells ringing if you seeing, seeing the female first. Um, and that's my point of this, this, this for the purpose of ethics. There's no difference between the first client saying I'm guilty. He's not, or the first client saying I'm guilt, you know. Um, so I'm not guilty. She is, um, because it, it, if you, if they're both your clients, you've got to look at it from both perspectives. So, um, would that change your view? Well, let's try to not complicate it too much because, well, we've been going for an hour already and I don't want to go on for another three hours. So let's try and short circuit this and go back to where we were. So we saw the female first. Let let, let's go back and try that again. And so we see her first. She says she wants to admit her offending, make it clear that, uh, that, that he wasn't involved. Um, so that, that's ok. That's where we were. Um, so the question now on the confidentiality and disclosure rather than conflict is, would that disclosure be material to the male suspect? Would the male suspect be at all interested in his decision making to know what she has said and what she is going to do? Um, and if it would be, and you act for him when you've got to disclose it because that's the all confidentiality and disclosure. Um You have to disclose it. Um And you can only do this ethically if you have her informed consent. And this is where, you know, the, the police understandably when they're investigating crime and I've been there. Um So they can be deeply suspicious of lawyers taking information from one, you know, to, to another. Um And the one thing we don't say to the police is, oh, don't worry, you know, I would never discuss with one client, what I would, what I, what I've discussed with the other client because when you're just telling the police that you're breaching professional ethics, that's probably not a good idea. Um And as I suggested, um what we say instead is that I am familiar with my professional conduct rules. Um I have considered them carefully and I'm happy that I am compliant. Um And as long as you're projecting yourself as a professional and uh you don't discuss it any further than that then. Uh, you, you, you should be fine. Um, but you can't stop people having suspicions that's up to them. So, is it in the female's best interests, uh, to give you a waiver? Um, the information if she does, uh, will no longer be confidential, um, much as you might say to him. Look, I, I'll tell you what she's gonna say but, um, it's confidential. It's not gonna stop him. Uh, maybe even starting to answer questions in an interview and, and, and, and blurting out the fact. Well, you know what, what you've told him. So you've got to regard that as being waived. It's lost, it's gone. Um, and she can't change her mind later and sort of say, oh, actually I know you've told him but, but can you just, just go and, and not tell him? Um, no, I've told him that, you know, that, that you gave me the waiver. So this is what informed consent means and now it is tricky. Um, because going to see the male, you've got to tell him not only the disclosure you've had from the police, but you got to also tell him what the female has told you up front, which is that she, uh, was, uh, guilty and, and that he's not. And so what you're, what you're, you, you're concerned about is that before taking instructions, you disclose that to him because it is material. Um, and you've got to ask yourself, is she actually getting me to tell him to tell a lie and, and in other words, trying to pass a message to him to say, I'll take the rap for this. You let him know to say nothing, but she kind of knows already because you're a professional and you seem to be an ethical person that you're not gonna fall for that one. And so this is a way of covertly sending that message. Well, now you've got to look at the circumstances, um, the, the disclosure that you've got and I think in these circumstances, the one with the shop, um, there's no suggestion on the, on the, on the evidence that he was involved, which is why I'm kind of exercising my judgment in that sort of way. And if that's the way you want to go well exercise your judgment in that way, it's a matter for you and your professional judgment. We've been here so often, haven't we? It's a matter for your professional judgment. There is no right or wrong answer. So you look at the police disclosure, you look and consider what the female has told you in confidence and she says she's waived her confidence. Um, and you ask yourself, um, is this looking all right? And if you think it is, and you know, it's a judgment call, then you can see the male, but you give this closure, you say this is uh this is what she's told me. Um, and now of course you can't continue to act for him unless, uh, for her, I'm sorry, unless you can tell her what he's told you. And so while he, you can have to get his waiver as well, and you've got to be happy even without taking instructions from him that a waiver of confidentiality from him is actually in his best interest. Um, because of course, what he says, uh may well be material to uh to her um and affect her decision making as well. So these are the, the, the, the awkwardness if you like of confidentiality and confidentiality and the obligation to disclose so disclosure between clients and um you could only advise the male to disclose his confidence to waive if you like his confidentiality. Um If it would be in his best interests, um you need to be satisfied that any consent he gives you is informed. Uh once it's breached, regarded as being lost, but with his consent and provided that you're happy that there is no conflict. You're advising each client as you would if it were your own client, that the only client that's your conflict bit and you're now complying with your confidentiality and disclosure obligations as well. Fear we can take instructions um and carry on. Um So, and as we carry on, we continue to keep an eye out, we continue to do our ongoing monitoring for conflict um and make sure that the, anything that the clients are saying to us doesn't sort of give rise to that, um, view that, uh, they've got interest in, adverse to the other. So let's go back then to where we saw the female first. But this time, um, instead of answering questions, uh, she says, well, all right, then I'll take your advice. II, I won't actually answer questions but, um, I'll either remain silent or I'll make a statement. Let's say she, she wants to make a statement perhaps. Um, is there now a significant risk of one client having an interest adverse to the other? So this is now where we're thinking about conflict again. Um And if so, I'm saying exercise your professional judgment, keep one clan. Um and, and, and don't see the other one, get someone else out. Um And if not, uh well, continue as before. Um, this is a matter for your judgment, but of course, if it's in a portfolio, you'll need to explain it to him. In summary, that confidentiality is an integral part of the client. Retainer, client may give informed consent to waive it. That means the client understands that the information may be disclosed by the third party to another third party. Effectively. There's no going back if it's waived, it's gone. You regard it as gone and lost and you can only advise a client to waive confidentiality if it would be in the client's best interest or you consider it would be in the client's best interest to do so, confidentiality comes with an obligation to disclose. So you must not act with two clients in the same matter, uh without complying with that obligation to disclose that, which is material to each client. Um, you can't think to yourself. I know something. You don't know, it's likely to be material to your legal matter, but I'm not going to disclose it to you. You can't do that. Um Think about it from the client's perspective, of course not. Um And be careful that you're not taking a spurious defense to client number two, if um client number one has said no, they, they're not guilty, they weren't involved. Um So, uh consider that, consider it in the, in the context of the disclosure that you've had in the circumstances of the, of the case. And as I say, you can advise a client what's in their best interest. They may then choose to not do that. It may be that you're still comfortable to carry on. Um, and maybe get the client to sign. So there's all of these options. So if you like uh possible along the way. So what we've looked at then, uh, principles of conduct at first, uh and then we've had to independence was the big one, of course, conflict we've looked at, um, interest adverse. Can we, can we advise a client if they were as if they were our only client and then we've looked at confidentiality and disclosure. It's never confidentiality on its own. So people refer to the rule of confidence, confidential, the rule of confidentiality and disclosure. Um, and it is both, they come hand in glove. So finally we're gonna have a look at gross professional errors and then we'll have a look at how all this sort of pan plays out if you like in the accreditation scheme and the, and the assessments gross professional errors there. Well, let's, let's hope that there aren't any. But, um, yes, there have been, they're very rare. Um, but have there been the odd occasions uh, on test boards where we've had to consider it? Well, yes. Um, and so I'm going to just make sure we, we cover them, um, a gross professional. A GP uh will cause or should cause your assessment to fail. Uh, no matter what. So if it's in your critical instance, test, you could have done as, as, as well as anything and the rest of it. But with the GP, I'm sorry, that's it. It's gone. Same with the portfolio and, or the written exam. Um, there's no formal definition by the regulator of a gross professional error. It's really for the test board to decide, but it's unlikely to be gross unless it's accompanied by a report to the SR A. So it, it's only going to be these, these are extreme cases. It's only going to be gross if the test board thinks, you know, this, this is so bad, it needs to be reported to the regulator. Um, and this, therefore, it, it's something that was neither trivial nor justifiably inadvertent that's from the sr a website. So, um, there you go. It, it's something that was not trivial. Um, it, it wouldn't be nontrivial if it were grass, um, nor justifiably inadvertent. And so I think that's caused more problems on test boards where we say, I think probably, uh, this was inadvertent and, and on, on a couple of occasions, um, and I'm talking about a different test board, not data on a different, um, organization's test board. Um, we, we, at the time sort of even have asked the, the candidate to clarify, um, and say, look at this, looking a bit ambiguous. Um, and that they respond rather say, well, I can see that that was just inadvertent or no. Um, I think I've explained things badly. Um, so it does need to be serious. Um, so what sort of a thing it's gonna be, it's gonna be deliberate, reckless, breach of the sr a code of conduct or principles of conduct. Um, it, it misled or had the potential to mislead a client, uh, the court. Anybody else, uh, whether or not that was appreciated by yourself, the regulated person which you are, um, it affected or had the potential to affect a vulnerable person or a child or formed part of a pattern of misconduct or other regulatory failure by the regulated person. So, um, it could be that a series of relatively minor or let's say moderate breaches might collectively add up to something that looks like a pattern of behavior. Um, which of course, uh, would collectively, um, be much more serious or even gross other aggravating factors that continued for an unreasonable period persisted after the person realized or should have realized that it was improper, um it caused or had potential to cause significant loss to anybody. It affected or potentially affected substantial high value, high profile matter. And I think that's not being engaged as far as I know, are related to a failure or refusal by you or me to ascertain the law and, or the ethical rules. So ignorance is no excuse. So a failure to ascertain uh what the law is or what the, what the rules are, it is not an excuse. So case reports, uh reported cases, I should say mostly from the courtroom. Um and it's where the solicitor knows that the client's given a false name, for example, or the client's instructions change um during the course of a case. And the solicitor having run the case so far on one basis now is thinking, well, hang on. I, I've prepared this case. I run it this far on the basis of your instructions. XX. Now you're changing them to instructions. Y I've really got a problem with that. I'm sorry. Um, iii I, you're entitled to change your instructions. You can change them to a degree. It can be a bit of memory recall. You've got a client who said, well, I would never, we've had this with the previous video if you remember client says, oh, I would never kick him on the ground. You know, you never kick a person on the ground. Certainly not, you know, not me. Um, then you look at the C CD V and they go, oh, yeah. Yeah. Yeah. Yeah. Um, look your instructions can change to a degree, but this is not a case of, of clients, sort of, you know, suddenly sort of saying one thing and then completely and wholly saying something else. Um So it could also get to that stage where you conclude that the client is simply seeking to explain away each sort of bit of disclosure, um, and finding an excuse or a reason for that. Um And, and these are, these are difficult, um, the difficult judgment call. I, I normally would, would suspend things, have a chat with the client, um, and find out what's going on and be clear about what my instructions are because that's what you need, what are my instructions? Um So what are my current instructions? Um And if they're changing or they appear to be changing, then I'm going to be unclear. Iii I need you to have another consultation with me so that I can actually understand what we, what we, what we're doing here because at the moment you're confusing me and I can't act for you as your lawyer if I'm confused about what your instructions are. So what are examples that helping the client to invent a false defense can be a tricky one? You're required to explain the law to a client. So the elements of the offense, this is it, um, you know, that this is appropriate dishonestly property belonging to other, et cetera and tend to be deprived. Um, but you're also required to explain defenses. So, you know, if, if you believe that I taken reasonable steps and, you know, it could not be traced the clients that, that, yes, that, that was it. And what did you say again? Um, this is where it becomes, uh, difficult, this is where it becomes tricky because you need to be clear about what your instructions are. Um, and of course, you know, I, I've been challenged about this over the years, you know. Well, you know, um, you know, is it true that you help clients to concoct offense? Well, no, it's not true at all. Um, I don't do that. We don't do that. But do we tell a client what, uh, the elements of an offense are? And do we tell a client explain to a client the what the relevant elements of a defense are? Um, yes, we do. And is it possible for a client to, to use that information to concoct a false defense. Well, yes. Um, but that's not us doing it. We, we're not suggesting it. Um, and that's the point here, I'm not saying this is what you need to say. I'm saying this is the law. Um, but it can be difficult when you get a feel, um, that, um, that, that, that your, your instructions are sort of less than honest, but I, I can't tell you what to do. You just got to really learn um, from the experienced lawyers that you're with. Um, and then just take each case as it comes. Um, and make sure as I said to, you know, don't, don't put this qualification at risk simply because somebody else is trying to make you professionally embarrassed. Um, you may have a good and substantial reason to say actually, um, I, I just, um, II, I, I'm not happy with this. So helping the client to avert a false defense, gross professional error. So you don't say to a client, you know, or this is what you need to say, um, or colluding between two co accused, you know, say if you say that I'll then tell your co accused say these are gross pro you can see that they're gross professional errors. And I'm not suggesting for a second that any one of us would do them, um, or the client gets you to do it. Well, if I say that, then, then you tell her to, to, to say this no. Um uh just say no. Uh and uh it rings a bell, doesn't it? Um And advise the client about your ethics and say, look, you know, this is I have a code of conduct to comply with here. Um And this is not possible for me to do that. And I've had situations where a client has basically said, look, I'm, I'm so I'm saying that, um, you can actually for the other one. So you just, you just make sure you tell her to say that. So actually I'm not going to act for her. Um, I was contemplating doing it, but I think in the light of what you just said, um, it's not something that I'm gonna be happy to, to carry on and do. Um, so I'm gonna get someone else out for her. Um And then see what the client says. They might not want you, of course, but they haven't really got much choice if it's legally aided because, um, they, that you can't just change, um, if they don't like your advice. So the client says I did it, but I'm gonna tell them that I didn't. This is a, this is a, a naughty one that, that came up years ago. Um And I've given you a quote here, why not? Uh, this is from? And I think the Battle of and Field here. So Walter Scott back in the early uh, 19th century here. Oh, what a tangled web we weave when first we practice to deceive. Let's get a bit of English literature in one of these videos. Why not? Um, what this means is, you know, you, you tell one lie, then you've got to compound it with another one, then another one, then another one in order to cover your tracks and I put it a competent interview will likely unpick it. And eventually a client says just goes, no comment. Um, and you're sitting there thinking, ok, so that wasn't true after all. Um, and they'll do so quickly, um, and leave the client in a worse position. So I know you may have been in one or two police interviews already and thought that wasn't very good. It wasn't very, very well done or very cleverly done. But, um, I don't think the next one is not going to be competent. Um, it would probably lead to professional embarrassment if your client were to, uh, to do this. Um, and that would require you to withdraw. Um, but if a client says, you know, I did it, but I'm, I'm gonna tell them that I didn't, it, it, it, it, it's not, it, it, it, it is an ethical issue. Um, but the immediate issue is probably more important, which is not a good idea. Um, to lie. Um, that, that's my first port of call. Um, it, it was said years ago by, um, this was years ago because it was actually where the law society was a regulator um that you would be misleading the court. Um And I did make the point. I said, look, you know, we are not arbiters of uh clients, truthfulness and the client might be lying to us. Um uh Clients do believe it or not. Uh They don't always tell us the truth or they give us full instructions or things like that. And um so I was trying to draw a line there and say, look, you know, we're at the police station here. Um So, so I'm happy for you to say um that we could be professionally embarrassed here but misleading the court. There needs to be a court to be misled. So um be clear about what the ethical issue is here and there is one um which is that um you know, you, you're putting me in, in, in, in an impossible situation here because what you're telling me um is that you are out to deliberately lie to the police. And as I said to you at the beginning of this video, um you know, it's not only us telling lies, it's a problem, it's us engaging or with somebody else telling lies, it's not worth it. Um So the point is you don't know what the truth is. You take instructions in good faith. Clients, instructions can shift like shifting instructions can leave you unclear, confused. Perhaps then you just have to ask yourself, can I continue to act professionally objectively independently with this client? And if the answer is no, well, you may have good reason to withdraw. Um, but you don't need the client high and dry at the police station. Um So if you have a good reason to withdraw, you have to make sure the client is still uh looked after. There is a case study from a port failure. Uh from years ago, female client alleged to have assaulted another female employee at work. It was ripping off a necklace and I don't know, I'm not going to do it to myself now, stop it, but it was scratching the neck and then in pulling off the, the necklace. Um, and the client said, yeah, I did, but I'm going to go in and tell him it was self defense. Um, and the candidate then immediately withdrew and said, well, I'm sorry, that's it. Um I can't act for you anymore. Um, picked up papers and walked out. Um, and I think it's no, no, no, you, that's a gross professional error. Sorry. Um I know you think you're doing the right thing, but you've left a client at the police station without legal representation. Your job is to it, it, it, it is to make sure that that client has legal representation. That's what she's asked for. And your first port of call is not professional ethics. Yes, it's engaged. But hold on a 2nd, 1st thing to say to that. Listen, it's never a good idea to be untruthful. It's never a good idea to, if you, if you're guilty, let's just work out whether you should either go to comment, say nothing or, um, admit you're guilt to make a statement or something like that. So, we don't, uh, just, you know, take, pick up our papers and walk out, um, because that would be a professional error. Um, and the police of course, knew about it. Um, and was that in the client's best interest? Probably not, in fact, certainly not. Um, you must also, I think I alluded to this. We're just coming to the end of it. You must be competent to advise and to represent, uh, the client. So if you lack knowledge, look it up, don't carry on regardless. Make sure that I, I've been at the police station with some odd computer related allegations that I've not been familiar with. So, hold on, stop, stop, stop. I'm not going any further until I've actually got a specimen charge and I actually know what I'm talking about here. Um, so forgive me, but, but I'm, I'm not just gonna carry on bumbling along with this one. So we need to be competent to advise if you're unsure how to advise the client get help. Um So if you are a probationary uh representative and you're compiling your portfolio, it might be that you're doing a stage two portfolio case, which is you. Um, um, so, um, so doing the job if you like, but being observed, um, and you're not sure about what's going on. Well, you've got to just say to whoever's with you and say, look, I need some help here. This is now not going to be a stage two portfolio case anymore because you're no longer observing. I'm having to ask you about this. Um So I'm not being signed off as being competent, but this is in the client's best interest for me to make sure uh that I actually um um I am uh doing this with the competence required. Keep an eye on allegations. Uh is either way offending, for example, changing to indictable only. Remember that as a probationary representative, um you can do as a advise, a client on summary only and either way uh cases if it starts to become indictable, only watch out for that. Um If it happens in the portfolio, it needs to be explained and what you did about it. Um And there will be times when the advice you give to your client is not clear cut, whether to speak to go to a comment or whether to um make a statement and in difficult cases, um please be reassured that nobody's sort of sitting there thinking, well, you know, that was the wrong call. It should have been that um we respect your professional judgment provided that you can explain your reasoning and you take into account the right factors. Uh and you don't take into account, uh a non relevant factors, you come to a judgment decision, uh that is not uh manifestly unreasonable in the circumstances. And it may be that as an assessor, I'm looking at it thinking, not sure that's what I would have done. Um But that's not the criterion to apply. Um, that we just look at what you explain what you've done, why you did it, you in legal aid as well. So any feelings you've got about the, uh, the subject matter, this is you, um, must not adversely affect your ability to be professional, independent, objective. So, um, we do come across some pretty vile stuff from time to time and if it's affecting you personally, then you've got to keep asking yourself. Um, am I, am I, do I remain competent, um, to do this? I was talking to one solicitor and she just said, I, I just felt, um, at the police station in Bridgewater was custody. Um, she said I just, I don't know, it was, it was an allegation, um, about, uh, some involving Children. She said I've got young Children and she said I just thought I can't be independent. Well, you know, some people say, well, you're in the wrong job then, but I think let's try and cut her a bit of slack here and say that, you know. Um, yeah, I can see probably there, there may be days when that might be, um, you know, might affect you for whatever reason. Um, and I personally think she did the right thing to make a call to the office and, um, say to the one of the other partners, can you come down and deal with this, please? Um, and he did, if it's publicly funded legal aid also requires there to be reasonable cause for a client to transfer a client can't actually just transfer lawyers because they're not happy with your advice. There are principles of once a fee if you like and the attendance fee has been triggered. Um And a new provider has a responsibility. So if somebody else is taking over, they have to check. Um and it can be that you just say I, I'll waive my tenants fee, you take the fee and carry on um or it could be well. No, I've done quite a bit here. So I'm I'm there, there will be two fees in which case one has to be justified quite rightly with uh with public funds um to the legal aid agency, of course. Um And so a legally aided client can't just sort of hop from one lawyer to uh another. Uh And those are other sort of considerations uh that uh we have in our mind when we're handling all this stuff. So gross professional errors then coming towards the end of our video here, um summary, any collusion, uh, with clients or wanton breach of, uh, professional ethics is going to be, it could be gross. Uh, concocting a defense for a client telling the client what they need to say to get off. Um, as we've mentioned, the client tells you, they intend to lie and you go along with it and you're actually, it, it, it, that's not just a question of professional embarrassment. It's a question of, I'm not clear what my instructions are here because you're saying one thing to me, one thing to them. Um And, and that's not actually helping me to, uh in fact, it's disabling me from being an effective uh lawyer. Um or you find yourself lacking in knowledge or competence and fail to get back up again. Um That is you're not putting the client first. Um And that's what you need to be doing. So expect the written exam and all the critical instance test to present you with ethical issues. Uh Absolutely. So client says, what should I say to get off this? The client says, if you act for her as well, just tell her to say that. So if I say this, it'll be a complete defense for that if there's all I need to say. Um So if you can tell him what I'm saying, then he can say the same or the police, for example, saying, well, you know, you're not going to be acting for both of them and certainly not, you know, there's that and, and so you may get challenged by these things, of course. Um, and particularly in the critical instance, test expected, um, expect there to be some form of, uh, ethical issue, uh, in the test summer. Um, so one of the utterances to, to be, um, an ethical question, it ought to be well flagged. Um, I don't think it will be in my experience, isn't that it's not to be the sort of nuanced issues that we've been talking about. Um But it should be well flagged. Um If in doubt, of course, don't, don't do it um in your portfolio. Well, this is where it can be a little bit more, um tricky, a bit more subtle, a bit more nuanced as I say. Um So in a portfolio case, consider the practicalities first. Uh you know, lying is never a good idea in an interview. Don't abandon a client at the police station. Um Unless you've got a good and substantial reason. Uh and you give the client reasonable notice and also you're actually in the client's best interest, make sure they get a new lawyer. Um So we don't just walk out and a labor client as it happened on, on, on occasions in the past, don't write a portfolio case with ambiguity. Um Don't leave the assessor thinking. Oh, is that, does that, does, does that a breach um be clear that you are being ethically compliant? Um And consider carefully a portfolio case if you're going to be writing um that you attended two or more clients. Um I'm not here to choose your case as you choose them yourself in conjunction with your supervising solicitor. But I just want to make the point that there's no requirement to mention both clients if you're attending two clients at the police station, as long as the case makes sense and hangs together as a whole by just referring to one. So what we've looked at then in this uh video, part seven principles of conduct, uh we've looked at conflict and we've looked at confidentiality and disclosure and we've also looked at gross professional errors and this has been professional ethics, the essentials. Um and um it falls as one of the nine videos in our, at the police station uh section series if you like and that falls within the entire um uh series uh or collection of videos um at part four. Um And you'll see there are other sections to it, of course, as well. We had a look at the learning objectives at the beginning of this uh uh video. Do please pause it? Have a look at those, make sure we've covered them learning outcomes. Of course, these are the skills side of things um which you'll be able to practice at the police station. Um So make sure please satisfy yourself that we've covered those um as well and it just leads me to say thank you for watching. We've been going for a good hour and a half here. So it's been another very long video and this has just been professional ethics, the essentials. Um I've hope you've enjoyed it. I hope you found it interesting. It's not always easy, um, to make sure that you do the right thing. Um And please, of course, uh, confirm your understanding and using the consolidating questions, um, that will be posted uh for you to do after watching the video. Um So again, thank you for watching. I'm Matthew Hickling and hopefully I'll see you at the in the next uh video. Uh, but in the meantime, uh, good luck and uh, please be ethically compliant. And I think for the next, uh for the next video we are again back at the police station, so I'll be back in the, in the collar and tie for another couple of uh, couple of videos. Um But until we, we meet again, uh Thank you very much for watching and uh good luck. Thank you.
Essential Criminal Law - Examinable Offences Part One
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Examinable Offences Part One: Quiz 
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