1.1 Introduction to the Core Duties

Question 1

What is Core Duty 1?

Answer 1

CD1

You must observe your duty to the court in the administration of justice.

Question 2

What is the relationship of CD1 to the other Core Duties?

Answer 2

gC1

CD1 overrides any other duty, if and to the extent the two are inconsistent.

Question 3

What five obligations are included in CD1?

Answer 3

rC3
Your duty … includes the following obligations:
1.
you must not knowingly or recklessly mislead or attempt to mislead the court;
2.
you must not abuse your role as an advocate;
3.
you must take reasonable steps to avoid wasting the court’s time;
4.
you must take reasonable steps to ensure that the court has before it all relevant decisions and legislative provisions;
5.
you must ensure that your ability to act independently is not compromised.

Question 4

What obligations does the Rule against misleading the court (rC3.1) include?

Answer 4

rC6
Your duty not to mislead the court will include the following obligations:
.1
you must not:
.a
make submissions, representations or any other statement; or
.b
ask questions which suggest facts to witnesses which you know, or are instructed, are untrue or misleading.
.2
you must not call witnesses to give evidence or put affidavits or witness statements to the court which you know, or are instructed, are untrue or misleading, unless you make clear to the court the true position as known by or instructed to you.

Question 5

What is the qualification to your duty to act in the best interests of each client (CD2)?

Answer 5

rC4

Your duty to act in the best interests of each client is subject to your duty to the court.

Question 6

What does your duty to the court (CD1) not require you to do where it conflicts with other duties?

Answer 6

rC5
Your duty to the court [CD1] does not require you to act in breach of your duty to keep the affairs of each client confidential [CD6].

Question 7

Which two Conduct Rules expand on CD3 (“you must act with honesty, and integrity”)?

Answer 7

rC8
You must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).

rC9 [in summary]
.1
you must not knowingly or recklessly mislead or attempt to mislead anyone;
.2
you must not draft any statement of case, witness statement, affidavit or other document containing:
.a
statements not supported by the client;
.b
any contention which you do not consider to be properly arguable;
.c
any allegation of fraud, unless you have clear instructions to allege fraud and reasonably credible evidence
.d
(in the case of a witness statement or affidavit) any statement of fact other than the evidence which you reasonably believe the witness would give if the witness were giving evidence orally;
.3
you must not encourage a witness to give evidence which is misleading or untruthful;
.4
you must not rehearse, practise with or coach a witness in respect of their evidence;

Question 8

What examples are given in the Guidance of what might breach your duty to maintain your independence (CD4)?

Answer 8

gC18
The following may reasonably be seen as compromising your independence … :
.1
offering, promising or giving:
.a
any commission or referral fee …; or
.b
a gift (apart from items of modest value …; or
.2
lending money to any such client, professional client or other intermediary; or
.3
accepting any money (whether as a loan or otherwise) from any client, professional client or other intermediary, unless it is a payment for your professional services or reimbursement of expenses or of disbursements made on behalf of the client;

Question 9

What examples does the Guidance give of conduct that is likely to diminish trust and confidence that the public places in you and the profession?

Answer 9

gC25
[conduct likely to diminish trust and confidence] includes (but is not limited to):
.1
[referring to your status as a barrister, for example on professional notepaper, in a context where it is irrelevant, such as in a private dispute]
.2
breaches of Rule rC10 [referral fees];
.3
criminal conduct, other than minor criminal offences (see Guidance C27);
.4
seriously offensive or discreditable conduct towards third parties;
.5
dishonesty;
.6
unlawful victimisation or harassment; or
.7
abuse of your professional position.

Question 10

To whom does a barrister owe her duty under CD2 where the barrister is instructed through a professional client or intermediary?

Answer 10

gC36

your duty is to your client [i.e. your lay client] not to your professional client or other intermediary.

Question 11

What obligations are included in your duties

to act in the best interests of each client (CD2),

to provide a competent standard of work and service to each client (CD7) and

to keep the affairs of each client confidential (CD6)?

Answer 11

rC15
…
.1
you must promote fearlessly and by all proper and lawful means the client’s best interests;
.2
you must do so without regard to your own interests or to any consequences to you …;
.3
you must do so without regard to the consequences to any other person …;
.4
you must not permit your professional client, employer or any other person to limit your discretion …; and
.5
you must protect the confidentiality of each client’s affairs, except for such disclosures as are required or permitted by law or to which your client gives informed consent.

rC17
Your duty to act in the best interests of each client (CD2) includes a duty to consider whether the client’s best interests are served by different legal representation, and if so, to advise the client to that effect.

Question 12

What are the three outcomes associated with CD9?

Answer 12

oC21
BSB regulated persons are effectively regulated.
oC22
The public have confidence in the proper regulation of persons regulated by the Bar Standards Board.
oC23
The Bar Standards Board has the information that it needs in order to be able to assess risks and regulate effectively and in accordance with the regulatory objectives.

Question 13

Being open and co-operative with your regulators includes a duty to report what?

Answer 13

rC65
You must report promptly to the Bar Standards Board if:
.1
you are charged with an indictable offence…;
.2
… you are convicted of, or accept a caution, for any criminal offence … other than a minor criminal offence;
.3
you … are the subject of any disciplinary or other regulatory or enforcement action by another Approved Regulator …;
.4
you are a manager of a regulated entity (other than a BSB entity) which is the subject of an intervention by the approved regulator of that body;
…
.7
you have committed serious misconduct;

Question 14

When must you report others’ misconduct to the BSB?

Answer 14

rC66
… if you have reasonable grounds to believe that there has been serious misconduct by a barrister or [other BSB-regulated person].

Question 15

When must you not report misconduct by others to the BSB?

Answer 15

rC67
You must never make, or threaten to make, a report under Rule rC66 without a genuine and reasonably held belief that Rule rC66 applies.