Bar Rules QLD Flashcards
what are the 3 general rules of advocacy?
do not engage in conduct which is
1. dishonest or discreditable.
2. prejudicial to the administration of justice.
3. likely to diminish public confidence in the in the legal profession or bring the legal profession into disrepute.
What are the bar rules made in the belief of?
- you owe your paramount duty to the administration of justice.
- must maintain high standards of professional conduct.
- must act honestly, fairly, skilfully and with competence and diligence.
- duties owed to courts, clients and colleagues.
- exercise judgment independently notwithstanding the desires of their clients.
- accept briefs, not refuse briefs, compete as advocates as often as possible.
What must a barrister avoid doing when they have been offered a brief?
- set the fee higher than what they ordinarily would.
- require a specific lawyer to also be instructed
- have an arrangement with someone which prevents them from accepting briefs
what number bar rule is the cab rank principle?
21
what are the exceptions to the cab rank principle?
Yes, 95, 97, 98, 99
what is the cab rank principle?
a barrister must accept a brief from a solicitor to appear before a court in a field which the barrister practises or professes to practise.
What is a barrister’s duty to the court?
overriding duty to act with independence in the interests of the administration of justice.
what is a barrister duty to the client?
protect and promote the clients interests fearlessly by all proper and lawful means without regard for his own interests.
what are a barristers 4 duties to the client?
- promote and protect the client’s interests fearlessly by all proper and lawful means
2.inform the client about alternatives to fully contested adjudication. - assist the client to understand the issues in the case so that they can give proper instructions
- advise a criminal client matter about possible diminution of penalty available for a guilty plea.
5 ways a barrister can ensure they maintain independence
- Not act as a mere mouthpiece for the client or instructing solicitor. Must exercise forensic judgments independently
- do not give your personal opinion on the merits of evidence or an issue
- deal with the court in terms of personal familiarity
- don’t give anyone gifts in return for work
- Loan money from the client
In maintaining your independence, you will not breach your duty to the client by doing the following 3 things…
- confine the hearing to the real issues
- present a case quickly and simply
- inform the court of any persuasive authority against the client
5 duties to your opponent
- don’t knowingly make a false statement
- avoid dealing with someone else’s client (there are exceptions)
- deal with anyone that is unrepresented (there is an exception)
- communicate with the court in your opponent’s absence
- raise matters with the court which your opponent has not already consented to.
what should you do if your client has reasonable grounds to seek an adjournment?
take steps to inform your opponent. try to get your opponent’s consent to inform the court
6 things a barrister can do to ensure the efficient administration of justice?
- perform work within sufficient time or, if you cannot, inform the client
- confine case to the issues in dispute
- have case ready to be heard
- present case clearly and succinctly
- limit cross examination
- occupy as short a time in court as is necessary
What are the 4 things you must do when invoking the coercive powers of the Court?
- material available to you reasonably justifies making a claim
- making a claim is appropriate for the robust advancement of the case
- ensure it’s not done to harass or embarrass someone
- ensure it’s not done for some collateral purpose
When making allegations under privilege, what 3 things should a barrister be careful not to do?
- allegations are justified by material available to the barrister
- only do so if appropriate for the robust advancement of the case
- do not do so to embarrass or harass someone.
If a question involves sexual assault, indecent assault or the commission of an act of indecency
check rules 61 and 62
In what circumstances is barrister precluded from alleging a matter of fact?
If there are not reasonable grounds for a barrister to do so, then the following circumstances:
1. Court docs settled by the barrister
2. submissions during a hearing
3. opening address
4. closing address
When can a barrister allege a fact amounting to criminality, fraud or other serious misconduct unless
he believes on reasonable grounds that
1. there’s a proper basis for it from available material
2. client wishes allegation to be made and aware of the consequences if it’s not made out.
3. instructing solicitor presents the material to the barrister
When can a barrister make a suggestion in cross-examination on credit?
If he believes on reasonable grounds that acceptance of the suggestion would diminish the witnesses credibility
If there is a question on cross examining witnesses, what section of the bar rules will be relevant?
Responsible use of court process and privilege.
Can you disclose the identity of someone not involved in a case when making submissions in mitigation of the client’s criminality?
you should avoid doing so unless you believe on reasonable grounds that it’s necessary to do so.
What are 5 ways a barrister can maintain integrity of evidence?
- advise a client to give false or misleading evidence
- coach a witness
- confer with more than one lay witness at the same time
- avoid conferring with a witness while they are under cross examination
- take any step to discourage a witness from conferring with an opponent
If the question is with respect to a criminal matter, which section ought to be considered?
Delinquent or guilty client’s
What do you do if you find out your client has lied during a hearing or while judgment is pending?
must refuse to take further part in the case unless the client authorises the barrister to inform the court of the lie.
What are 6 things you do if your client has confessed his guilt to you but maintains a plea of not guilty?
- must not set up an affirmative case.
- must put the prosecution to proof
- must not suggest someone else is guilty
- may argue the evidence does not prove guilt
- may argue that for some reason of law the client is not guilty
- withdraw if the client insists on giving evidence denying guilt
What should you do if a client intends to disobey a Court order?
- advise them of the dangers of doing so
- do not advise as to how they can conceal that course
- not inform the opponent of the client’s intention
Process for every question
- identify the ethical principle behind the bar rules and the reason for it.
- answer question and identify the relevant rule or legislative provision
- apply the content of the bar rule
- identify where an active role in pursuing ethical behaviour is required of the barrister, client or solicitor
What is the duty of a prosecutor? (3 prongs)
assist the court arrive at the truth, have the whole of the relevant evidence put intelligently before the court and assist the court with adequate submissions of law.
What are the 5 things a prosecutor must not do as part of his duty to the court
- press the case beyond a full and firm presentation
- seek to inflame or bias the court
- argue any fact or law that will not contribute to a finding of guilt
- inform the court that it has evidence unless that evidence is available
- interview an accused except in the presence of their lawyer
Can a barrister return a brief in order to accept a different brief?
If you have consent of the solicitor and client after you have informed them of the circumstances
Can a barrister return a brief to attend a social occasion?
not unless client and solicitor expressly permit the barrister to do so
Can a barrister hand over a brief to another barrister for an appearance?
If the solicitor and client have consented.
What do you do if you are briefed to appear for 2 or more parties and there’s a possible conflict?
return the brief for all parties or just one to remove the conflict
What should you do if you obtain information about another person which you are prohibited from disclosing and it’s material to your client’s case?
return the brief (unless the person who the information is about consents)
What should you do if you think the client has a claim against their solicitor?
Inform the solicitor. Inform the client in the instructing solicitors presence if they do not agree to inform the client
what does a prosecutors duty of fairness and impartiality manifest in?
duty to disclose
call all relevant witnesses
submissions on sentence
what bar rule refers to a prosecutors detachment and need for self control
must not press for conviction beyond a full and firm presentation of the case
