Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

NSW BE Notes > Barrister's Rules > Flashcards

Barrister's Rules Flashcards

1
Q

Rule 3

A

3 - Objects

(a) Act in accordance with general principles of professional conduct
(b) Act indepdently;
(c) Recognise obligations to the administration of justice: and
(d) Provide services of highest standard unaffected by personal interest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Rule 4

A

4 - Principles
(a) Paramount duty is to administration of justice;
(b) Maintain high standards of professional conduct;
(c) As specialist advocates, must act honestly, fairly, skilfully, bravely and with competence and diligence;
(d) Owe duties to the court, to their client, barristers and solicitors;
Theres a lot more

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Rule 7

A

7 - Other standards

The Barrister’s Rules are not a code.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Topic - Advocacy Rules

A

8 - 9

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Rule 8

A

8 - General
A barrister must not engage in conduct which is:
(a) Dishonest / discreditable;
(b) Prejudicial to the administration of justice; or
(c) Likely to diminish the public confidence in the legal profession.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Rule 9

A

9 - Another vocation
The prohibition against barrister’s engaging in other work that is likely to:
(a) Adversely affect the reputation of the legal profession/barrister;
(b) Impair / conflict with the barrister’s duty to the client;
(c) Prejudices a barrister’s ability to attend to client’s interests.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Rule 10

A

Prohibition against the use of a barrister’s professional qualifications for improper purposes.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Rule 11

A 
11 - Work of a barrister
A barrister's work consists of:
- Advocacy;
- Negotiation;
- Representation;
- Giving legal advice;
- Drafting;
- Anything incidental to the above.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Rule 12

A

12 - Requires that a barrister be a sole practitioner

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Rule 13

A

13 - A barrister must not, subject to rules 14 and 15:

(a) Act as a general agent / attorney for a person in their business dealings with another;
(b) Conduct correspondence in the barrister’s name, otherwise than with the opponent;
(c) Place himself / herself at risk of becoming a witness;
(d) Act as a person’s only representative with the court, otherwise than when appearing as an advocate;
(e) Be the address for service of a document;
(f) Commence proceedings or file (other than in court) or serve any process of any court;
(g) Conduct a conveyance for any person;
(h) Administer any trust estate or fund for any other person

LIST CONTINUES DOWN TO (l)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Rules 14 and 15

A

14 states that you can do the things in rule 13 if doing them as a private person, not as a barrister, and without fee.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Rule 16

A

A barrister who is or may be engaged to perform work that is not barrister’s work must:

(a) promptly inform the person 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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Rule 17

A

Cab-rank principle
A barrister must accept a brief from a solicitor to appear before a court in a field in which the barrister practises or professes to practice if:
(a) The brief is within the barrister’s capacity, skill and experience;
(b) The barrister would be available to do the work as required; and
(c) The fee is acceptable.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Rule 18

A

A barrister must not set the fee higher than usual with a view to deterring the solicitor from continuing to offer the brief.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Rule 19

A

A barrister must not require a particular person to be briefed or instructed as a requirement of accepting the brief.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Rule 20

A

A barrister must not make any arrangements that would prevent the barrister from:

(a) Accepting any brief to appear except for proper reasons; and
(b) Competing with any other legal practitioner for work.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Rule 21

A

A barrister is not obliged to accept a brief from a person who is not a solicitor.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Rule 22

A

A barrister who proposes to accept a direct access brief must:

(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 a solicitor at short notice, and possibly during the performance of the work;
(iii) Any other disadvantage the barrister reasonably believes may occur as a result of not retaining a solicitor;
(iv) The relative capacity of the barrister alone as compared to the barrister and solicitor; and
(v) A fair description of the barrister’s advocacy experience; and
(b) Obtain written acknowledgement signed by the client that he or she has been informed of the above.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Rule 23

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Rule 24

A

A barrister must not knowingly or recklessly deceive the court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Rule 25

A

A barrister must correct any misleading statement made to the court as soon as practicable.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Rule 26

A

A barrister must alert the opponent and if necessary, the court, to any express concession made by the opponent in relation to evidence, case law or legislation, that is incorrect and which appears to the barrister to have been made by mistake.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Rule 27

A

A barrister seeking interlocutory ex parte relief must disclose to the court all factual and legal matters which are:

(a) Within the barrister’s knowledge;
(b) Not protected by privilege; and
(c) Would reasonably support an argument against the barrister’s case.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Rule 28

A

If there are adverse facts or case law that are protected by legal privilege, the barrister must:

(a) seek instructions for waiver of privilege to permit disclosure under r 27; and
(b) If the client refuses to give those instructions, the barrister must inform the client of the duty under r 27 and must refuse to appear on the application.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Rule 29

A 
A barrister must inform the court of:
(a) Any binding authority;
(b) If no binding authority, a decision of an appellate court; and
(c) Any applicable legislation
That is directly on point to the issue
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Rule 30

A

A barrister need not inform the court of the matters within rule 29 if the case is over, unless the barrister should have informed the court at a time when the case wasn’t already over.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Rule 31

A

If a barrister becomes aware of a matter in rule 29 while judgment is reserved / pending, must inform the court of the matter by:

(a) Letter to the court and copied to the opponent; or
(b) Requesting the court relist the matter for further argument after first notifying the opponent.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Rule 32

A

A barrister need to inform the court of the matters in rule 29 if it only relates to the inadmissibility of the prosecution’s evidence which was already ruled inadmissible.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Rule 33

A

A barrister who knows / suspects that the prosecution is unaware of the barrister’s client’s previous convictions cannot ask about them in the hope of eliciting a negative response from the witness.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Rule 34

A

A barrister must inform the court of any apparent misapprehension by the court as to the effect of an order it is making.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Rule 35

A

Duty to the client
Promote and fearlessly protect by all proper and lawful means the client’s best interests without regard to the barrister’s own interests.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Rule 36

A

A barrister must inform the client about alternatives to fully contested adjudication of the case unless the client is already aware of those alternatives.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Rule 37

A

A barrister must assist the client to understand his / her rights and obligations in respect of the case, including with respect to compromise of the case.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Rule 38

A

A barrister must inform a client charged with a criminal offence about any law, procedure or practice that holds an advantage to the client (i.e. including sentencing discounts).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

Rule 39

A

39 - Criminal pleas
A barrister in criminal matters must advise their client:
(a) Generally about any plea to the charge; and
(b) That the client has the responsibility for, and complete freedom of choosing the plea to be entered.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Rule 40

A

For the purpose of rule 39, a barrister can advise the client in strong terms on the benefits of an early guilty plea.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

Rule 41

A

Where a barrister is informed that the client denies committing the offence charged, but insists on pleading guilty, the barrister must:

(a) Inform the client that by pleading guilty he/she is admitting guilt to all the world in respect of the elements charged;
(b) Inform the client that matters submitted in mitigation after a plea must be consistent with a plea of guilty; and
(c) Be satisfied that after receiving proper advice, the client is making a free and informed choice to plead guilty; and
(d) Is otherwise free to represent the client.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Rule 42

A

42 - Independence
A barrister is not a mere mouthpiece and must exercise their forensic judgment, after appropriate consideration of the client and instructing solicitor’s instructions.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Rule 43

A

A barrister does not breach their duty to the client, or fail to give appropriate consideration to the client / instructing solicitor’s wishes, simply by exercising their forensic judgment to:

(a) Confine any hearing to the real issues in the case;
(b) Present the client’s case as quickly and simply as necessary for its robust advancement; and
(c) Inform the court of any persuasive authority against the client’s case.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

Rule 44

A

Prohibition against expressing personal views or opinions on the merits of evidence or issues before the court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

Rule 45

A

Prohibition against dealing with the court on informal, personal or familiar terms.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Rule 46

A

Prohibition against payment / gift for receiving work.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Rule 47

A

Prohibition against a barrister exercising undue influence over a client to obtain a benefit other than fair remuneration.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

Rule 48

A

A barrister must not receive any money or property by way of loan from a client, client’s relative, or client’s company, unless lending money is the ordinary business of that company / entity.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

Rule 49

A

49 - Duty to the opponent

A barrister must not knowingly make a false / misleading statement to an opponent about a case (including its compromise).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

Rule 50

A

A barrister must take all necessary steps to correct a false / misleading statement to an opponent as soon as practicable.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

Rule 51

A

A barrister does not make a false / misleading statement to an opponent simply by failing to correct the opponent’s error.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

Rule 52

A

Prohibits dealing with other parties directly when represented unless:

(a) Enquiring only about whether and by whom the party is represented;
(b) The legal practitioner representing the party has previously consented;
(c) The barrister believes on reasonable ground that:
(i) the circumstances are so urgent as to require the barrister to do so; AND
(ii) It would not be unfair to do so.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

Rule 53

A

A barrister must not deal with an unrepresented party directly unless the party consents.

50
Q

Rule 54

A

A barrister must not communicate with the court directly on any matter of substance (except an ex parte application of which the party had proper notice), unless:

(a) The court has already communicated with them in a manner requiring a response; or
(b) The opponent has consented beforehand to the barrister dealing with the court in a specified way.

51
Q

Rule 55

A

The barrister must promptly tell the opponent what passes between them and the court after a communication under r 54.

52
Q

Rule 56

A

A barrister must limit the issues raised with the court in a r 54 communication to those that the opponent has consented to.

53
Q

Rule 57

A

57 - Efficient administration of justice
A barrister:
(a) Must seek to do their work with sufficient time to ensure compliance with court orders / timetables; and
(b) Must inform the instructing solicitor / client is they will be unable to do the work in time.

54
Q

Rule 58

A

A barrister must ensure that their work is done to:

(a) confine the case to the issues 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 to that necessary to protect a client’s interests; and
(e) Occupy as short a time in court as necessary to advance the client’s interests.

55
Q

Rule 59

A

Requirement of a barrister to inform opponent as soon as necessary if they expect to need to adjourn a hearing.

56
Q

Rule 60

A

60 - Responsible use of court process / privilege
A barrister’s advice to invoke the coercive powers of the court must:
(a) Be reasonably justified on the material then available to the barrister;
(b) Be appropriate for the robust advancement of the client’s case;
(c) Not be given principally in order to harass / embarrass;
(d) Not be to gain a collateral advantage.

57
Q

Rule 61

A

Any allegations / suggestions made by a barrister under privilege must be:

(a) Reasonably justified by the material then available to the barrister;
(b) Appropriate for the robust advancement of the client’s case;
(c) Are not made principally in order to harass / embarrass a person.

58
Q

Rule 62

A

In sexual assault proceedings, where the alleged victim is giving evidence:

(a) A barrister must not ask the victim a question that is intended to:
(i) mislead, or confuse the witness; or
(ii) be unduly annoying harassing, intimidating, offensive, oppressive, humiliating or repetitive, and
(b) A barrister must take any particular vulnerability of the victim into account when asking questions.

59
Q

Rule 63

A

A barrister doesn’t contravene rule 62 just by:

(a) challenging the witnesses’ truthfulness, consistency or accuracy; or
(b) Asking questions the witness considers to be private, offensive or distateful.

60
Q

Rule 64

A

A barrister must not allege any matter of fact in any court document, submission, opening, or closing address unless the barrister reasonably believes that factual material already available provides a proper basis for doing so.

61
Q

Rule 65

A

Prohibition against alleging any matter of fraud, criminality or other serious misconduct unless the barrister reasonably believes that:

(a) Available material supports the allegation; and
(b) The client wishes the allegation to be made after being properly advised on the seriousness / consequences of making the allegation.

62
Q

Rule 66

A

A barrister may have regard to their instructing solicitor’s opinion with respect to the availability of appropriate evidence to support an allegation under rules 64 or 65.

63
Q

Rule 67

A

Any suggestion in cross-examination on credit must actually be capable of diminishing the witness’ credit.

64
Q

Rule 68

A

If a barrister is instructed to make submissions in mitigation that implicate another party who is not able to answer the allegations, the barrister must seek to avoid directly or indirectly disclosing that other person’s identity, unless the barrister believes that disclosure is necessary for the robust advancement of the client’s case.

65
Q

Rule 69

A

69 - Integrity of evidence
Prohibition against:
(a) advising, suggesting or condoning that a witness give false or misleading evidence; and
(b) coaching a witness.

66
Q

Rule 70

A

A barrister doesn’t breach rule 70 by a general admonition to tell the truth, questioning / testing the witness’ evidence or drawing inconsistencies to the witnesses’ attention, but most not encourage the witness to give untrue evidence.

67
Q

Rule 71

A

Prohibition against conferring with more than one lay witness at a time:

(a) about any issue that may reasonably become contentious; and
(b) where such conferral may affect the evidence of the witness.

68
Q

Rule 72

A

A barrister doesn’t breach rule 71 by conferring with more than one client about undertakings to a court, admissions / concessions, amendments of pleadings or compromise.

69
Q

Rule 73

A

A barrister must not confer with any witness under cross-examination unless:

(a) The cross-examiner has consented beforehand to the barrister doing so; or
(b) The barrister:
(i) the barrister reasonably believes that special circumstances (including the need for instructions on a proposed compromise) warrant the conferral;
(ii) , has, if possible, informed the cross-examiner beforehand; and
(iii) otherwise informs the cross-examiner as soon as practicable after.

70
Q

Rule 74

A

A barrister must not discourage a prospective witness from conferring with an opponent or being interviewed on behalf of any other person involved with the proceedings.

71
Q

Rule 75

A

A barrister does not breach rule 74 by simply telling a witness that they need not consent to being interviewed or by advising about relevant obligations of confidentiality.

72
Q

Rule 76

A

76 - Media Comment
Prohibition against publishing / taking steps to publish any material concerning proceedings which:
(a) is inaccurate;
(b) discloses confidential information; or
(c) expresses the barrister’s opinion on the merits of a current or potential proceeding, or any issue in the proceeding.

73
Q

Rule 77

A

A barrister must not publish / take steps to publish any material on a proceeding in which the barrister is appearing / likely to appear, other than:

(a) responding to a direct question about certain aspects of the proceeding;
(b) where it is not contrary to legislation or court practice, and at the request of the client or instructing solicitor, or in response to an unsolicited question:
(i) copies of current pleadings already filed and served;
(ii) copies of affidavits / witness statements already tendered in court;
(iii) copies of transcript of open court, if permitted by copyright; or
(iv) copies of exhibits admitted in open court and without restriction on access.

74
Q

Rule 78

A

A barrister:

(a) may, if requested, advise a client on media comment but not in a way that is calculated to interfere with the proper administration of justice; and
(b) does not breach rules 76 and 77 merely by advising a client on their right to respond to media comment.

75
Q

Rule 79

A

79 - Delinquent or guilty clients
A barrister who finds out that a client, or a client’s witness has lied, falsified evidence or procured another to do so, must refuse to take any further part in the case unless the client authorises the barrister to inform the court of the lie / misconduct and if the client doesn’t provide those instructions, the barrister must cease acting but cannot inform the court.

76
Q

Rule 80

A

A barrister whose client in criminal proceedings informs them of their guilt, but wishes to maintain a plea of not guilty:

(a) may continue to act on behalf of the client subject to r 80(b) - (h), but must not otherwise continue to act;
(b) Must not falsely suggest another person committed the offence;
(c) Must not set up an affirmative case inconsistent with the confession;
(d) Must put the prosecution to proof;
(e) May argue the evidence doesn’t reach the standard of proof:
(f) May argue that for some other reason the client is not guilty;
(g) May argue that for a reason not prohibited by 80(a) and (b), the client is not guilty;
(h) Must not continue to act if the client insists on denying guilt or making a statement asserting the client’s innocence.

77
Q

Rule 81

A

A barrister whose client tells them they intend to disobey a court order:

(a) Must advise the client against that course and warn the client of its dangers;
(b) Must not advise the client how t carry out / conceal that course;
(c) Must not inform the court or opponent of the client’s intention unless:
(i) the client has authorised the barrister to do so beforehand; or
(ii) the barrister reasonably believes that the client’s conduct constitutes a threat to any person’s safety.

78
Q

Rule 82

A

A barrister who threatens the safety of any person may, notwithstanding rule 114, advise the policy or other appropriate authorities if the barrister reasonably believes there is a risk to any person’s safety.

79
Q

Rule 83

A

83 - Prosecutor’s duties
A prosecutor must fairly assist the court to arrive at the truth and impartially have all relevant evidence placed intelligibly before the court and assist the court with adequate submissions of law to enable the law to be properly applied to the facts.

80
Q

Rule 84

A

Prosecutor must not press the prosecution case beyond a firm and fair presentation of that case.

81
Q

Rule 85

A

Prohibition against inflaming or biasing the court against the accused.

82
Q

Rule 86

A

A prosecutor must not argue any proposition which they do not reasonably believe is capable of contributing to a finding of guilt.

83
Q

Rule 87

A

A prosecutor must, as soon as practicable, disclose to their opponent all material available to the prosecutor, which the prosecutor believes on reasonable grounds may be relevant to the guilt or innocence of the accused, other than material subject to a statutory immunity, unless the prosecutor reasonably believes that such disclosure would seriously threaten the administration of justice or safety of any person.

84
Q

Rule 88

A

A prosecutor who decides not to disclose any material under r 87 must consider whether the charge against the accused should be withdrawn or lessened.

85
Q

Rule 89

A

A prosecutor must call any witness whose evidence:

(a) is admissible and necessary for the presentation of all the relevant circumstances; or
(b) could provide admissible evidence relevant to a matter in issue;
(c) unless:
(i) the opponent consents to not calling a particular witness;
(ii) the matter is already being dealt with by other evidence;
(iii) same as (ii);
(iv) the prosecutor believes on reasonable grounds that the evidence is plainly untruthful or plainly unreliable; or
(v) if, when considering that the prosecution case is presented properly and with fairness to the accused, the prosecution believes that the interests of justice would be harmed if the witness was called as part of the prosecution case.

86
Q

Rule 90

A

If the prosecution determines not to call a witness (that is not already being called), they must provide the details of the witness to the accused lawyer, along with the grounds upon which they reached the decision not to call the witness.

87
Q

Rule 91

A

A prosecutor who reasonably believes that certain material was unlawfully obtained, must:

(a) inform the opponent if the prosecutor intends to use the material; and
(b) make a copy available to the opponent.

88
Q

Rule 92

A

A prosecutor must not confer with / interview any accused except with their lawyer present.

89
Q

Rule 93

A

A prosecutor must not inform the court or their opponent that they have evidence supporting their case unless they reasonably believe the evidence will be available from material already available.

90
Q

Rule 94

A

A prosecutor who has incorrectly informed the court or opponent under rule 93 must immediately correct the mistake.

91
Q

Rule 95

A

A prosecutor:

(a) Must correct any error made by the opponent in address on sentence;
(b) must inform the court of any relevant authority / legislation bearing on sentencing;
(c) Must assist the court to avoid appellable error on sentencing; and
(d) may submit that a non-custodial sentence is appropriate.

92
Q

Rule 96

A

96 - Investigative tribunals
Rules 77 and 83 - 95 (prosecutor’s duties) do not apply to a barrister who appears as counsel assisting an investigative tribunal.

93
Q

Rule 97

A

A barrister appearing as counsel assisting in an investigative / inquisitorial tribunal must fairly assist the tribunal to arrive at the truth and must seek to assist the tribunal with adequate submissions of law and fact.

94
Q

Rule 98

A

Counsel assisting an investigative / inquisitorial tribunal must not inflame or bias the tribunal against any person.

95
Q

Rule 99

A

Counsel assisting an investigative / inquisitorial tribunal must not argue any proposition of fact / law that they do not believe is capable of contributing to a finding on balance of probabilities.

96
Q

Rule 100

A

Counsel assisting an investigative / inquisitorial tribunal must not publish or take steps towards the publication of any material in relation to that tribunal other than:

(a) supply answers to unsolicited questions within the boundaries of rule 100(a);
(b) Accurate copies of the documents filed / served in open court.

97
Q

Rule 101

A

101 - Briefs
Rule 101 outlines a long list of briefs that must be refused or returned. It goes from 101(a) - (m) as follows:

(a) barrister holds info confidential to another person in the case and that material:
(i) is/may be material to the prospective client’s case: and
(ii) the other person has not consented to waiver of confidentiality;
(b) barrister’s interests may conflict with client’s;
(c) A barrister holds a retainer with another party which gives the other party first right of refusal and they offer the barrister a brief in that matter;
(d) Barrister may be a witness in the case;
(e) Brief is to appear in an appeal where a barrister was a witness at first instance;
(f) Barrister’s own personal or professional conduct may be attacked in the case;
(g) Barrister has a material financial or property interest in the case, other than a fee;
(h) A dispute as to costs that includes the barrister’s fees, or is to appear on the recovery of costs against the client that the barrister acting for;
(i) A brief to appear at an arbitration that the barrister has already appeared at;
(j) The brief is to appear before the barrister’s family member;
(k) The barrister reasonably believes that the client’s failure to retain a solicitor, would seriously prejudice the barrister’s ability to act for the client;
(l) The barrister has already drawn pleadings or advised for another party in the matter;
(m) The barrister has already discussed in detail (even on an informal matter) with another party with an adverse interest in the matter

98
Q

r 101A

A

Refusal of briefs by barristers who are current and former judges or tribunal members

A barrister, who is a former judge or tribunal member, must refuse to accept a brief to appear before a court or tribunal if they were a judge / tribunal member of that court /tribunal within the last 5 years (or if an appeal from the subject court would lie to the court that the barrister was previously a member of).

99
Q

102

A

A barrister need not return a brief under r 101(f) if they reasonably believe that:

(a) the allegations against the barrister were made with a view to prevent the barrister from accepting the brief; and
(b) those allegations can be met without materially diminishing the barrister’s disinterestedness.

100
Q

103

A

A barrister must refuse to accept a brief to advise if the barrister has confidential information of someone with different interests from the prospective client if:

(a) the information may affect the prospective client’s interests or the interests of the person to whom the confidential information relates; and
(b) the person entitled to the confidentiality has not consented to the barrister using the information in any way it seems fit.

101
Q

104

A

Provision against accepting a brief to appear when already committed to appear.

102
Q

105

A

105 - Briefs which may be refused or returned

There is a long list of briefs which may be refused or returned.
Remember that when returning a brief that may be returned, there are a number of restrictions on HOW the briefs are returned.

The reasons are outlined at 105(a) - (m):

(a) If the brief is not offered by a solicitor;
(b) if the barrister reasonably believes that the time or commitment required by the brief will threaten the barrister’s practice or other professional or personal commitments;
(c) if the instructing solicitor does not agree to be responsible for the barrister’s fee;
(d) if the barrister reasonably doubts that the their fee will be paid promptly or in accordance with the costs agreement;
(e) if the brief may reasonably require the barrister to cross-examine or criticise a friend or relative;
(f) If the solicitor does not comply with the barrister’s request for attendances;
(g) if the barrister’s advice as to the preparation or conduct of the case, not including its compromise, is ignored by the instructing solicitor or client;
(h) if the instructing solicitor is not truly independent of the client (i.e. they’re the same person, or a partner, employer or employee);
(i) if a senior counsel is briefed and they reasonably believe that an SC should not be briefed;
(j) if a senior counsel isn’t given a junior counsel when they reasonably require it;
(k) where there is a personal or business relationship between the barrister and any other person involved in the matter;
(l) where the brief is to appear before a judge whose personal or business relationship with the barrister gives the apprehension that there may not be a fair trial; or
(m) in accordance with the terms of a costs agreement which provides for the return of the brief.

103
Q

Rule 106

A

A barrister may return a brief accepted under a conditional costs agreement if the barrister reasonably considers that the client unreasonably rejected a reasonable offer of compromise contrary to the barrister’s advice.

104
Q

Rule 107

A

A barrister must not return a brief to defend a serious criminal charge unless:

(a) the barrister reasonably believes:
(i) the circumstances are exceptional and compelling; and
(ii) there is enough time for another legal practitioner to take over; or

(b) the client has consented after the barrister has clearly informed the client of the circumstances in which the barrister wishes to return the brief and of the terms of this rule.

105
Q

Rule 108

A

A barrister must not return a brief to appear in order to accept another brief to appear unless the instructing solicitor or the client has permitted the barrister to do so beforehand, after the barrister has informed them of the circumstances under which he wishes to return the brief and the effect of this rule and rule 110.

106
Q

Rule 109

A

A barrister must not return a brief to appear on a particular date to attend a social occasion unless the instructing solicitor or client has expressly permitted the barrister to do so.

107
Q

Rule 110

A

If returning a brief, it must always be done with enough time to allow another practitioner a proper opportunity to take over the case.

108
Q

Rule 111

A

Requirement for the barrister to promptly inform the instructing solicitor or client as soon as the barrister become aware that there is a real possibility that they will be unable to complete the work in the required / reasonable time.

109
Q

Rule 112

A

A barrister must not hand over the brief to another barrister to conduct the case or appear unless the instructing solicitor has consented to that course of action.

110
Q

Rule 113

A

113 - Devilling

A barrister does not breach r 112 if it is devilling.

111
Q

Rule 114

A

114 - Confidentiality and conflicts
Prohibition against disclosing confidential information unless and until:
(a) the information is later obtained by some third party not bound by the confidentiality and who gives the information without the requirement for confidentiality; or
(b) the client consents to the disclosure of the confidential information.

112
Q

Rule 115

A

Limits the disclosure under r 114(b) to the terms of the consent by the client.

113
Q

Rule 116

A

The barrister does not breach rules 114 and 115 by disclosing to their instructing solicitor, staff or in the context of devilling.

114
Q

Rule 117

A

A barrister shown a brief as a reader or while devilling is bound by confidentiality.

115
Q

Rule 118

A

A barrister must return a brief, other than a brief to appear, as soon as possible after learning that they hold information confidential to another person which may, as a real possibility, be material to the client’s case / client’s interests and the barrister is prohibited from disclosing / using unless the person consents to the barrister using that confidential information as the barrister sees fit.

116
Q

Rule 119

A

A barrister briefed to appear for 2 or more parties must determine whether the interests of the clients may, as a real possibility conflict and if so:

(a) return all briefs in the case of confidentiality to which rule 114 applies; or
(b) one or more of the clients to remove the conflict.

117
Q

Rule 120

A

A barrister who reasonably believes that the client and instructing solicitor’s interests conflict, or that the client may have a claim against the instructing solicitor must:

(a) advise the instructing solicitor of the barrister’s belieg; and
(b) if the instructing solicitor does not agree to advise the client of the barrister’s belief, then the barrister must do so in the presence of the instructing solicitor.

118
Q

Rule 121

A

A barrister must not give an undertaking to the court on behalf of the instructing solicitor / client without their express authority.

119
Q

Rule 122

A

A barrister must not disclose to the court any communication between the barrister and legal representatives of any other party:

(a) except by consent;
(b) unless what occurred resulted int eh creation of some contractual or other legal relationship;
(c) unless it was expressly stated before or at the commencement of such communication that matters communicated should not be regarded as without prejudice or privileged from use or disclosure; or
(d) unless disclosure is required by the court.

120
Q

Rule 123

A 
123 - Anti-discrimination and harassment
A barrister must not in the court of practice, engage in conduct which constitutes:
(a) discrimination;
(b) sexual harassment; or 
(c) workplace bullying.
121
Q

Rule 124

A

Definitions

NSW BE Notes (10 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions