Barrister rules

Question 1

What is the object of BR?

Answer 1

Barristers to
1. act in accordance of general rules of professional conduct;
2. act independently;
3. recognize and discharge their obligation in relation to administration of justice;
4. provide services to the highest of standard unaffected by personal interest.

Question 2

What are the principles of barristers rules?

Answer 2

1. paramount duty to the administration of justice,
2. maintain high standards of professional conduct,
3. specialist advocates in the administration of justice, must act honestly, fairly,
   skilfully, bravely and with competence and diligence,
4. owe duties to the courts, to their clients and to their barrister and solicitor colleagues
5. exercise their forensic judgments and give their advice independently and for
   the proper administration of justice, notwithstanding any contrary desires of their clients
6. the provision of advocates for those who need legal representation is better secured if there is a
   Bar whose members:
   (i) must accept briefs to appear regardless of their personal beliefs,
   (ii) must not refuse briefs to appear except on proper professional grounds, and
   (iii) compete as specialist advocates with each other and with other legal practitioners as widely
   and as often as practicable.

Question 3

What are the main sub-categories of advocacy rules?

Answer 3

1. General
2. Other vocation
3. use of professional qualification
4. work of a barrister
5. cab rank principle
6. Duty to court
7. Duty to client
8. criminal pleas
9. Independence
10. Duty to the opponent
11. Efficient administration of justice
12. Responsible use of court process and privilege
13. Integrity of evidence
14. Media comments
15. Guilty client
16. Pros duties
17. Investigative tribunals

Question 4

What types of conduct are prohibited?

Answer 4

A barrister must not engage in conduct which is:
(a) dishonest or otherwise discreditable to a barrister,
(b) prejudicial to the administration of justice, or
(c) likely to diminish public confidence in the legal profession or the administration of justice or
otherwise bring the legal profession into disrepute

Question 5

What is rule around another vocation for barristers?

Answer 5

A barrister must not engage in another vocation which:
(a) is liable to adversely affect the reputation of the legal profession or the barrister’s own
reputation,
(b) is likely to impair or conflict with the barrister’s duties to clients, or
(c) prejudices a barrister’s ability to attend properly to the interests of the barrister’s clients.

Question 6

What is the rule around the use of professional qualifications?

Answer 6

A barrister must not use or permit the use of the professional qualification as a barrister for the
advancement of any other occupation or activity in which he or she is directly or indirectly engaged,
or for private advantage, unless that use is usual or reasonable in the circumstances.

Question 7

What does the work of a barrister involve?

Answer 7

Barristers’ work consists of:
(a) appearing as an advocate,
(b) preparing to appear as an advocate,
(c) negotiating for a client with an opponent to compromise a case,
(d) representing a client in or conducting a mediation or arbitration or other method of alternative
dispute resolution,
(e) giving legal advice,
(f) preparing or advising on documents to be used by a client or by others in relation to the client’s
case or other affairs,
(g) carrying out work properly incidental to the kinds of work referred to in (a)–(f), and
(h) such other work as is from time to time commonly carried out by barristers.

Question 8

Would a barrister work for anyone else?

Answer 8

No
A barrister must be a sole practitioner, and must not:
(a) practise in partnership with any person,
(b) practise as the employer of any legal practitioner who acts as a legal practitioner in the course of that
employment,
(c) practise as the employee of any person,
(d) be a director of an incorporated legal practice, or
(e) practise by or through an unincorporated legal practice.

Question 9

Can a barrister act as agent or attorney for a person in business or dealings with others?

Answer 9

No
A barrister MUST NOT act as a person’s general agent or attorney in that person’s business or dealings with others,

UNLESS it is without fee and as a private person not as a barrister or legal practitioner.

AND UNLESS appointed so to act
or becomes responsible for such funds as a private person and not as a barrister or legal practitioner.

Question 10

Who can a barrister correspond on behalf of any person?

Answer 10

No
A barrister MUST NOT conduct correspondence in the barrister’s name on behalf of any person otherwise than with the opponent
UNLESS it is without fee and as a private person not as a barrister or legal practitioner.

Question 11

How can a barrister place themselves of the risk of becoming a witness?

Answer 11

A barrister MUST NOT place herself or himself at risk of becoming a witness, by investigating facts for the purposes of appearing
as an advocate or giving legal advice, otherwise than by:
(i) conferring with the client, the instructing solicitor, prospective witnesses or experts,
(ii) examining documents provided by the instructing solicitor or the client, as the case may be, or
produced to the court,
(iii) viewing a place or things by arrangement with the instructing solicitor or the client, or
(iv) library research,

UNLESS it is without fee and as a private person not as a barrister or legal practitioner.

Question 12

Can a barrister act as a person’s only representative when dealing with court?

Answer 12

No
A barrister must not act as a person’s only representative in dealings with any court, otherwise than when actually appearing as
an advocate,

UNLESS it is without fee and as a private person not as a barrister or legal practitioner.

Question 13

Can a barrister be the address for service?

Answer 13

No
A barrister must not be the address for service of any document or accept service of any document,

UNLESS it is without fee and as a private person not as a barrister or legal practitioner.

Question 14

Can a barrister commence any proceedings or file any documents with court?

Answer 14

No
A barrister must not commence proceedings or file (other than file in court) or serve any process of any court,

UNLESS it is without fee and as a private person not as a barrister or legal practitioner.

Question 15

Can a barrister conduct conveyancing?

Answer 15

No
A barrister must not conduct the conveyance of any property for any other person,

UNLESS it is without fee and as a private person not as a barrister or legal practitioner.

Question 16

Can a barrister obtain probate or letters of administration?

Answer 16

No
A barrister must not obtain probate or letters of administration for any other person,

UNLESS it is without fee and as a private person not as a barrister or legal practitioner.

Question 17

Can a barrister incorporate companies?

Answer 17

No
A barrister must not incorporate companies or provide shelf companies for any other person,

UNLESS it is without fee and as a private person not as a barrister or legal practitioner.

Question 18

Can a barrister do tax returns for any other person?

Answer 18

No
A barrister must not prepare or lodge returns for any other person, unless the barrister is registered or accredited to do so under
the applicable taxation legislation,

UNLESS it is without fee and as a private person not as a barrister or legal practitioner.

Question 19

Can a barrister hold, invest or disburse any funds for any other person?

Answer 19

No
A barrister must not hold, invest or disburse any funds for any other person.

UNLESS it is without fee and as a private person not as a barrister or legal practitioner.

AND UNLESS appointed so to act
or becomes responsible for such funds as a private person and not as a barrister or legal practitioner.

Question 20

Can a barrister administer any trust estate or fund for any other person?

Answer 20

No
A barrister must not administer any trust estate or fund for any other person,

UNLESS it is without fee and as a private person not as a barrister or legal practitioner.

AND UNLESS appointed so to act
or becomes responsible for such funds as a private person and not as a barrister or legal practitioner.

Question 21

What should a barrister do if they are approached to do work that is not part of a barrister’s work?

Answer 21

must promptly inform that
person:
(a) of the effect of rules 11, 12, and 13 as they relevantly apply in the circumstances, and
(b) that, if it be the case, solicitors are capable of providing those services to that person.

Question 22

What is the cab rank principle?

Answer 22

barrister must accept a brief from a solicitor to appear before a court in a field in which the
barrister practises or professes to practise if:
(a) the brief is within the barrister’s capacity, skill and experience,
(b) the barrister would be available to work as a barrister when the brief would require the barrister
to appear or to prepare, and the barrister is not already committed to other professional or
personal engagements which may, as a real possibility, prevent the barrister from being able to
advance a client’s interests to the best of the barrister’s skill and diligence,
(c) the fee offered on the brief is acceptable to the barrister, and
(d) the barrister is not obliged or permitted to refuse the brief under rule 101, 103, 104 or 105.

Question 23

What is the rule re barrister fees?

Answer 23

A barrister must not set the level of an acceptable fee, for the purposes of rule 17 (c), higher than the barrister
would otherwise set if the barrister were willing to accept the brief, with the intent that the solicitor may be
deterred from continuing to offer the brief to the barrister.

Question 24

What is the rule for barristers and specific solicitors being instructed?

Answer 24

A barrister must not require that any other particular legal practitioner be instructed or briefed so as in any way
to impose that requirement as a condition of the barrister accepting any brief or instructions.

Question 25

Any arrangement made by a barrister should not prevent them from …

Answer 25

A barrister must not make or have any arrangement with any person in connection with any aspect of the
barrister’s practice which imposes any obligation on the barrister of such a kind as may prevent the barrister
from:
(a) accepting any brief to appear for reasons other than those provided by the exceptions to the cab-rank
principle in rule 101, 103, 104 or 105, or
(b) competing with any other legal practitioner for the work offered by any brief for reasons other than those
referred to in rule 101, 103, 104 or 105.

Question 26

What is the rule re direct briefs?

Answer 26

NOT Obliged to accept briefs except from solicitors

Nothing in these Rules shall be taken to oblige a barrister to accept instructions directly from a person who is
not a solicitor.

Question 27

What should a barrister do if they are accepting a direct brief?

Answer 27

(a) inform the prospective client in writing of:
(i) the effect of rules 11 and 13,
(ii) the fact that circumstances may require the client to retain an instructing solicitor at short notice, and
possibly during the performance of the work,
(iii) any other disadvantage which the barrister believes on reasonable grounds may, as a real possibility,
be suffered by the client if the client does not retain an instructing solicitor,
(iv) the relative capacity of the barrister in performing barristers’ work to supply the requested facilities
or services to the client compared to the capacity of the barrister together with an instructing solicitor
to supply them, and
(v) a fair description of the advocacy experience of the barrister, and
(b) obtain a written acknowledgement, signed by the prospective client, that he or she has been informed of the
matters in (a) above.

Question 28

To whom a barrister owes an overriding duty?

Answer 28

A barrister has an overriding duty to the court to act with independence in the interests of the
administration of justice.

Question 29

What are the rules around misleading statements?

Answer 29

24 A barrister must not deceive or knowingly or recklessly mislead the court.
25 A barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as
soon as possible after the barrister becomes aware that the statement was misleading.

Question 30

What is the rule for concessions made in civil proceedings?

Answer 30

A barrister must alert the opponent and if necessary inform the court if any express concession made in the
course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the
knowledge of the barrister contrary to the true position and is believed by the barrister to have been made by
mistake.

Question 31

What is the rule for seeking interlocutory relief in an ex parte application?

Answer 31

A barrister seeking any interlocutory relief in an ex parte application must disclose to the court all factual or
legal matters which:
(a) are within the barrister’s knowledge,
(b) are not protected by legal professional privilege, and
(c) the barrister has reasonable grounds to believe would support an argument against granting the relief or
limiting its terms adversely to the client.

Question 32

What is the obligation around interlocutory ex parte applications and waiver of legal professional privilege?

Answer 32

barrister who has knowledge of matters which are within rule 27 (c):
(a) must seek instructions for the waiver of legal professional privilege if the matters are protected by that
privilege so as to permit the barrister to disclose those matters under rule 27, and
(b) if the client does not waive the privilege as sought by the barrister:
(i) must inform the client of the client’s responsibility to authorise such disclosure and the possible
consequence of not doing so, and
(ii) must refuse to appear on the application.

Question 33

What should a barrister do in relation to any applicable legislation and binding authority? - r29

Answer 33

barrister must, at the appropriate time in the hearing of the case if the court has not yet been informed of that
matter, inform the court of:
(a) any binding authority,
(b) where there is no binding authority any authority decided by an Australian appellate court, and
(c) any applicable legislation,
known to the barrister and which the barrister has reasonable grounds to believe to be directly in
point, against the client’s case.

Question 34

What is the exception to rule 29 (obligation to inform the court of any binding authority and applicable legislation)?

Answer 34

A barrister need not inform the court of matters within rule 29 at a time when the opponent tells the court that
the opponent’s whole case will be withdrawn or the opponent will consent to final judgment in favour of the
client, unless the appropriate time for the barrister to have informed the court of such matters in the ordinary
course has already arrived or passed.

Question 35

What is the effect of rule 29 (obligation to inform the court of any binding authority and applicable legislation) when judgment is reserved/ pending?

Answer 35

A barrister who becomes aware of a matter within rule 29 after judgment or decision has been reserved and
while it remains pending, whether the authority or legislation came into existence before or after argument,
must inform the court of that matter by:
(a) a letter to the court, copied to the opponent, and limited to the relevant reference unless the opponent has
consented beforehand to further material in the letter, or
(b) requesting the court to relist the case for further argument on a convenient date, after first notifying the
opponent of the intended request and consulting the opponent as to the convenient date for further
argument.

Question 36

What is the exception to rule 29 (obligation to inform the court of any binding authority and applicable legislation) in CRIMINAL Proceedings?

Answer 36

A barrister need not inform the court of any matter otherwise within rule 29 which would have rendered
admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on
the defence.

Question 37

What is a defence barrister’s obligation re the criminal priors of their client?

Answer 37

A barrister who knows or suspects that the prosecution is unaware of the client’s previous conviction must not
ask a prosecution witness whether there are previous convictions, in the hope of a negative answer.

Question 38

What is a barrister’s duty in relation to any misapprehension in relation to the effect of an order?

Answer 38

A barrister must inform the court of any apparent misapprehension by the court as to the effect of an order
which the court is making, as soon as the barrister becomes aware of the misapprehension.

Question 39

What are a barrister’s duties to their client?

Answer 39

1. A barrister must promote and protect fearlessly and by all proper and lawful means the client’s best
   interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own
   interest or to any consequences to the barrister or to any other person.

2 A barrister must inform the client or the instructing solicitor about the alternatives to fully contested
adjudication of the case which are reasonably available to the client, unless the barrister believes on reasonable
grounds that the client already has such an understanding of those alternatives as to permit the client to make
decisions about the client’s best interests in relation to the litigation.

3 A barrister must seek to assist the client to understand the issues in the case and the client’s possible rights and
obligations, sufficiently to permit the client to give proper instructions, including instructions in connection
with any compromise of the case.

4 A barrister must (unless circumstances warrant otherwise in the barrister’s considered opinion) advise a client
who is charged with a criminal offence about any law, procedure or practice which in substance holds out the
prospect of some advantage (including diminution of penalty), if the client pleads guilty or authorises other
steps towards reducing the issues, time, cost or distress involved in the proceedings

Question 40

What is a barrister’s duty representing a client charged with a criminal offence?

Answer 40

It is the duty of a barrister representing a person charged with a criminal offence:
(a) to advise the client generally about any plea to the charge, and
(b) to make clear that the client has the responsibility for and complete freedom of choosing the
pleas to be entered.

PLUS
a barrister may, in an appropriate case, advise the client in
strong terms that the client is unlikely to escape conviction and that a plea of guilty is generally regarded by the
court as a mitigating factor to the extent that the client is viewed by the court as co-operating in the criminal
justice process.

Question 41

What is a barrister’s duty when the client is denying the criminal allegations but insists on pleading guilty?

Answer 41

(a) must advise the client to the effect that by pleading guilty, the client will be admitting guilt to all the world
in respect of all the elements of the charge,
(b) must advise the client that matters submitted in mitigation after a plea of guilty must be consistent with
admitting guilt in respect of all of the elements of the offence,
(c) must be satisfied that after receiving proper advice the client is making a free and informed choice to plead
guilty, and
(d) may otherwise continue to represent the client.

Question 42

How should a barrister act independently?

Answer 42

A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must
exercise the forensic judgments called for during the case independently, after the appropriate
consideration of the client’s and the instructing solicitor’s wishes where practicable.

Question 43

In what circumstances can a barrister act in contrary to a client’s wishes?

Answer 43

A barrister does not breach the barrister’s duty to the client, and will not have failed to give appropriate
consideration to the client’s or the instructing solicitor’s wishes, simply by choosing, contrary to those wishes,
to exercise the forensic judgments called for during the case so as to:
(a) confine any hearing to those issues which the barrister believes to be the real issues,
(b) present the client’s case as quickly and simply as may be consistent with its robust advancement, or
(c) inform the court of any persuasive authority against the client’s case.

Question 44

Can a barrister express own personal views on the merits of the evidence?

Answer 44

NO
A barrister must not make submissions or express views to a court on any material evidence or issue in the
case in terms which convey or appear to convey the barrister’s personal opinion on the merits of that evidence
or issue.

Question 45

Gifts or payments in relation to new work being given to barrister

Answer 45

A barrister may not make a payment or gift to any person by reason of or in connection with the introduction
of professional work by that person to the barrister.

Question 46

What is the rule against pressuring client’s to pay more?

Answer 46

A barrister must not in any dealings with a client exercise any undue influence intended to dispose the client to
benefit the barrister in excess of the barrister’s fair remuneration for the legal services provided to the client.

Question 47

Loans from clients

Answer 47

A barrister must not receive any money or property by way of loan from any client, the relative of a client or a
business entity of which a client is a director, partner or manager, during the course of a retainer with that client

UNLESS the ordinary business of the client, client’s relative or the business entity includes lending money.

Question 48

What is a barrister’s duty to their opponent?

Answer 48

A barrister must not knowingly make a false or misleading statement to an opponent in relation to
the case (including its compromise).

A barrister must take all necessary steps to correct any false or misleading statement in relation to the case
made by the barrister to an opponent as soon as possible after the barrister becomes aware that the statement
was false or misleadin

Question 49

Would a barrister make a false statement if they fail to correct what their opponent has told them?

Answer 49

A barrister does not make a false or misleading statement to an opponent simply by failing to correct an error
on any matter stated to the barrister by the opponent.

Question 50

In what circumstances can a barrister directly deal with a party who is not their client?

Answer 50

A barrister must not deal directly with a party other than his or her client who is legally represented unless:
(a) the substance of the dealing is solely to enquire whether the person is represented and, if so, by whom,
(b) the legal practitioner representing the party has previously consented, or
(c) the barrister believes on reasonable grounds that:
(i) the circumstances are so urgent as to require the barrister to do so, and
(ii) the dealing would not be unfair to the party.

Question 51

Can a barrister confer with a party who is not represented?

Answer 51

A barrister must not confer with or deal directly with any party who is unrepresented unless the party has
signified willingness to that course.

Question 52

Communication with the court in the absence of the opponent?

Answer 52

A barrister must not, outside an ex parte application or a hearing of which an opponent has had proper notice,
communicate in the opponent’s absence with the court concerning any matter of substance in connection with
current proceedings unless:

(a) the court has first communicated with the barrister in such a way as to require the barrister to respond to
the court, or
(b) the opponent has consented beforehand to the barrister dealing with the court in a specific manner notified
to the opponent by the barrister.

A barrister must promptly tell an opponent what passes between the barrister and a court in a communication
referred to in rule 54.
56 A barrister must not raise any matter with a court in connection with current proceedings on any occasion to
which an opponent has consented under rule 54 (b), other than the matters specifically notified by the barrister
to the opponent when seeking the consent of the opponent.

Question 53

Administration of justice - completing work on time

Answer 53

A barrister:
(a) must seek to ensure that the barrister does work which the barrister is briefed to do in sufficient
time to enable compliance with orders, directions, rules or practice notes of the court, and
(b) if the barrister has reasonable grounds to believe that the barrister may not complete any such
work on time, must promptly inform the instructing solicitor or the client.

Question 54

How should a barrister prepare for a matter?

Answer 54

A barrister must seek to ensure that work which the barrister is briefed to do in relation to a case is done so as
to:
(a) confine the case to identified issues which are genuinely in dispute,
(b) have the case ready to be heard as soon as practicable,
(c) present the identified issues in dispute clearly and succinctly,
(d) limit evidence, including cross-examination, to that which is reasonably necessary to advance and protect
the client’s interests which are at stake in the case, and
(e) occupy as short a time in court as is reasonably necessary to advance and protect the client’s interests
which are at stake in the case.

Question 55

What is a barrister’s duty re adjournment applications?

Answer 55

A barrister must take steps to inform the opponent as soon as possible after the barrister has reasonable
grounds to believe that there will be an application on behalf of the client to adjourn any hearing, of that fact
and the grounds of the application, and must try, with the opponent’s consent, to inform the court of that
application promptly.

Question 56

Barrister’s advice to invoke the coercive powers of the court ..

Answer 56

A barrister must take care to ensure that the barrister’s advice to invoke the coercive powers of a
court:
(a) is reasonably justified by the material then available to the barrister,
(b) is appropriate for the robust advancement of the client’s case on its merits,
(c) is not given principally in order to harass or embarrass a person, and
(d) is not given principally in order to gain some collateral advantage for the client or the barrister or
the instructing solicitor or a third party out of court.