Barrister Rules 27-59 Flashcards
What must a barrister seeking interlocutory relief in an ex parte application disclose?
r27 A Barrister seeking interlocutory relief in any ex parte application must disclose to the court all factual and legal matters which:
(a) are within B’s knowledge
(b) not protected by privilege, and
(c) barrister has reasonable grounds to believe would support an argument against granting relief or limiting its terms adversely to the client
What must a barrister who has knowledge of the rules which are within r 27(c) do?
r28(a) they must seek instructions for waiver of professional privilege, if the matters that are protected by that privilege so as to permit the barrister to disclose those matters under r27, and
(b) if the client does not waive privilege as sought by the barrister (i) inform the client of the client’s responsibility to authorise such disclosure and the possible consequence for not doing so, and
(i) must refuse to appear on the application
What must a barrister do if the court has not been informed of any binding authority?
r 29 the barrister must, at the appropriate time if the court has not been informed of the matter, inform the court of
(a) any binding authority
(b) if not binding authority any authority decided by an Australian appellate court and
(c) any applicable legislation
known to the barrister, which the barrister believes to be directly in point against the client’s case
When does the barrister not need to inform the court of the matters in r 29?
r30 A barrister need not inform the court of matters in r 29 when the opponent tells the court that the opponent’s whole case will be withdrawn or the opponent will consent to final judgment in favour of the client, unless the appropriate time has arrived and passed.
What about when a barrister becomes aware of a matter to which r29 applies after a judgment or a decision is reserved/ remains pending whether an authority came into existence before or after argument?
r 31
(a) the barrister must inform the court by a letter to the court, copied to the opponent limited to the reference unless opponent consented to further material or
(b) request the court to relist the matter for further argument on a convenient date, after first notifying the opponent of the request and consulting the opponent as to a convenient date for further argument
What is another scenario where a barrister need not inform the court of any matter within r29
r32 a barrister need not inform the court of any matter otherwise within r29 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.
What is a barrister’s duty if he suspect the prosecution is unaware of a client’s previous convictions?
r33 A B must not ask the prosecution witness if there are previous convictions in the hope of a negative answer.
What is a barrister’s duty regarding the effect of an order?
r34 A barrister must inform the court regarding 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.
What is a Barrister’s duty to their client?
A barrister must protect fearlessly and by all proper lawful means the client’s best interest to the best of his skill/comp/diligence and do so w/o regard to his own interests or to any consequences to the barrister or to any other person.
Does a Barrister have a duty to inform a client/ soli as to anything?
r36 A B must advise a client or instructor as to the alternatives to fully contested adjudication of teh 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 to the litigation
What must a barrister seek for the client to understand?
r 37 A barrister must seek fro a client to understand the issues in the case and the client’s possible rights and obligations sufficiently to permit the client to give instructions, inclcuding instructions in connection with any compromise of the case.
What must a barrister advise a client in relation to a client who is charged with a criminal offence?
r38 A Barrister must, unless circs warrant otherwise in B’s considered opinion) advise a client who is charged with a crim offence about any law practice or procedure which in substance holds out some prospect or advantage (including diminution of penalty), if the client pleads guilty or authorises steps towards reducing the issues, time, cost and distress involved in proceedings.
What is the BR concerning independence?
(r 42) A Barrister must not act as a mere mouthpiece of the client or of the instructing soli. And must exercise forensic judgments, independently, after the proper consideration of the instructor and the client’s wishes where practicable.
What is r43
A Barrister will not breach duty to the client, and will not have failed to give appropriate consideration to the client’s or the instructors wishes, simply by choosing contrary to those wishes, to exercise forensic judgments called for during the case so as to
(a) confine those issues which the barrister believes to be the real issues
(b) present the case as quickly and as simply as consistent with its robust advancement
(c) inform the court of any persuasive authority again the client’s case
Can a barrister give his personal opinion?
No, r 44 states that a B cannot make submissions or express views to the court that give his own personal opinion on the merits of the evidence or issue.
Can a B deal with the court on terms of personal familiarity?
r 45 states A B must not deal, in the presence of other solis/parties deal with the court on informal terms, which may give the opinion that the barrister carries special favour with the court
Can a barrister make a payment or a gift to a person in connection with the introduction of professional work?
No, r 46 states A Barrister must not make a payment or gift to anyone by reason of or connection to professional work.
What about excess renumeration?
No r 47 states A Barrister must not in any dealings with a client exercise undue influence intended to dispose the client or the barrister in excess of fair renumeration for the legal services provided to the client.
Can a barrister receive property or money as a loan?
No r48 states a Barrister must no receive property or money as a loan from a client/relative/business entity of which a client is a director, partner or manager during the course of the retainer with that client unless the ordinary business or the client/relative or business entity includes the lending of money.
What is a barrister’s duty to an opponent?
A barrister must not make a false or misleading statement to an opponent in relation to a case ( including its compromise) r 49
What must a barrister do if he has done so?
If a barrister has made a false or misleading statement to an opponent in relation to a case, he must take all necessary steps to correct it as soon as he becomes aware of the fact (r50)
Does a barrister make a false or miselading statement if he fails to correct an opponent?
No, a Barrister does not make a false or misleading statement simply by failing to correct an error of the opponent.
Can a barrister deal with a party who is represented?
No, a Barrister must not deal with a party that is represented ( other than their client) unless (a)the substance of the enquiry is to find out if they are represented and if so by whom? (b) the legal practitioner has previously consented or the Barrister believes on reasonable ground that the circs are urgent and require a barrister to do so and the dealing would not be unfair to the party (r52)
Can a Barrister confer with a client who is unrepresented?
No, a barrister must not deal with a party who is unrepresented unless the party has signified a willingness to that course (r53)
