BCR - Advocacy Rules

Question 1

8 General - A barrister must not engage in conduct which is …

Answer 1

A barrister must not engage in conduct which is:

• dishonest or otherwise discreditable to a barrister,
• prejudicial to the administration of justice, or
• likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

Question 2

9 Another vocation

Answer 2

A barrister must not engage in another vocation which:

• is liable to adversely affect the REPUTATION of the legal profession / barrister’s own,
• is likely to IMPAIR OR CONFLICT with the barrister’s DUTIES TO CLIENTS, or
• prejudices a barrister’s ABILITY TO ATTEND PROPERLY to the interests of their clients.

Question 3

10 Use of professional qualification

Answer 3

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

Question 4

11 Work of a barrister

Answer 4

Barristers’ work consists of:

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

Question 5

12 A barrister must be a sole practitioner

Answer 5

A barrister must be a sole practitioner, and must not:

• practise in partnership with any person,
• practise as the employer of any legal practitioner who acts as a legal practitioner in the course of that employment,
• practise as the employee of any person,
• be a director of an incorporated legal practice, or
• practise by or through an unincorporated legal practice.

Question 6

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

Answer 6

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

a) act as a person’s general AGENT or attorney in that person’s business or dealings,

b) conduct CORRESPONDENCE in the barrister’s name on behalf of any person otherwise than with the opponent,

c) 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:
o conferring with the client, instructing solicitor, prospective witnesses or experts,
o examining docs provided by the solicitor or client, or produced to the court,
o viewing a place or things by arrangement with the instructing solicitor or client,
o library research,

d) act as a person’s only representative in dealings with any court, otherwise than when actually appearing as an advocate,

e) be the address for service of any document or accept service of any document,

f) COMMENCE PROCEEDINGS OR FILE (other than file in court) OR SERVE ANY PROCESS of any court,

g) conduct the CONVEYANCE of any property for any other person,

h) administer any TRUST ESTATE OR FUND for any other person,

i) obtain PROBATE or letters of administration for any other person,

l) HOLD, INVEST OR DISBURSE any funds for any other person.

Question 7

14 A barrister does not breach rule 13 (work exclusions) by …

Answer 7

A barrister does not breach rule 13 by doing any of the matters referred to in that rule, WITHOUT FEE AND AS A PRIVATE PERSON not as a barrister or legal practitioner.

Question 8

16 A barrister who is asked by any person to do work or engage in conduct which is not barristers’ work…

Answer 8

A barrister who is ASKED by any person to do work or engage in conduct which is NOT BARRISTERS’ WORK or which appears likely to require work to be done which is not barristers’ work, must PROMPTLY INFORM that person:

• of the EFFECT OF RULES 11, 12 AND 13 as they relevantly apply in the circumstances, and
• that, if it be the case, SOLICITORS are capable of providing those services to that person.

Question 9

17 Cab-rank principle

Answer 9

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 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 R101, 103, 104 or 105.

Question 10

18 A barrister must not set the level of an acceptable fee…

Answer 10

18 A barrister must not set the level of an acceptable fee 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.

Question 11

19 A barrister must not require that any other particular legal practitioner be instructed …

Answer 11

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 12

21 Nothing in these Rules shall be taken … (direct briefs)

Answer 12

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

Question 13

22 A barrister who proposes to accept instructions directly …

Answer 13

A barrister who proposes to accept instructions DIRECTLY from a person who is NOT a solicitor or officer of a government department or agency whose usual duties include engaging lawyers 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 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 services to the client ALONE and not with an instructing solicitor, and

(v) a fair DESCRIPTION OF THE ADVOCACY EXPERIENCE of the barrister, and

(b) obtain a WRITTEN ACKNOWLEDGMENT, signed by the prospective client, that he or she has been informed of the matters in (a) above.

Question 14

23 Duty to the court

Answer 14

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

Question 15

24 A barrister must not deceive or …

Answer 15

A barrister must not deceive or knowingly or recklessly mislead the court.

Question 16

25 A barrister must take all necessary steps to correct …

Answer 16

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 17

26 A barrister must alert the opponent and if necessary inform the court if …

Answer 17

26 A barrister must alert the opponent and if necessary inform the court if the opponent makes any express concession about evidence, case-law or legislation during a trial which the barrister a) knows is contrary to the true position, and b) believes the opponent has made by mistake.

Question 18

27 A barrister seeking any interlocutory relief in an ex parte application must disclose …

Answer 18

27 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 PRIVILEGED, 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 19

29 A barrister must inform the course, at the appropriate time in the hearing of a case, of …

Answer 19

A 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:

• any BINDING AUTHORITY,
• where there is no binding authority, ANY AUTHORITY decided by an Australian APPELLATE court, and
• 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 20

31 A barrister who becomes aware of a matter within R29 (duty to inform court of relevant law) AFTER judgment or decision has been reserved and while it remains PENDING …

Answer 20

31 A barrister who becomes aware of a matter within R29 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 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
• 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 21

34 A barrister must inform the court of any apparent misapprehension by the court as to the effect of …

Answer 21

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 22

35 Duty to the client

Answer 22

A barrister must PROMOTE AND PROTECT FEARLESSLY and BY ALL LAWFUL AND PROPER MEANS the client’s BEST INTERESTS to the best of the barrister’s skill and diligence, and do so WITHOUT REGARD TO THEIR OWN INTEREST or to any consequences to the barrister or any other person.

Question 23

36 A barrister must inform the client or the instructing solicitor about alternatives to …

Answer 23

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.

Question 24

37 A barrister must seek to assist the client to understand …

Answer 24

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.

Question 25

39 Criminal pleas

Answer 25

It is the duty of a barrister representing a person charged with a criminal offence: * to advise the client GENERALLY about ANY PLEA to the charge, and * to make clear that the client has the responsibility for and COMPLETE FREEDOM of choosing the pleas to be entered.

Question 26

40 For the purpose of fulfilling the duty in rule 39 (CRIM PLEAS), a barrister may advise the client in strong terms that ...

Answer 26

40 For the purpose of fulfilling the duty in rule 39, 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 27

41 Where a barrister is informed that the client denies committing the offence charged but insists on pleading guilty to the charge, the barrister ....

Answer 27

Where a barrister is informed that the client DENIES COMMTTING the offence charged but INSISTS ON PLEADING GUILTY to the charge, the barrister: * 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, * must advise the client that matters submitted in mitigation AFTER a plea of guilty must be consistent with admitting guilt in respect of all elements of the offence, * must be satisfied that after receiving proper advice the client is making a FREE AND INFORMED CHOICE to plead guilty, and * may otherwise CONTINUE TO REPRESENT the client.

Question 28

42 Independence (exercise of forensic judgment)

Answer 28

A barrister must NOT act as the mere mouthpiece of the client or of the instructing solicitor and must EXERCISE FORENSIC JUDGMENTS called for during the case INDEPENDENTLY, after the appropriate consideration of the client’s and solicitor’s wishes where practicable.

Question 29

43 A barrister does not breach the barrister’s duty to the client ...(FORENSIC JUDGMENT)

Answer 29

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: * CONFINE any hearing to those issues which the barrister believes to be the REAL ISSUES, * present the client’s case as quickly/simply is consistent with robust advancement, or * inform the court of any persuasive AUTHORITY AGAINST the client’s case.

Question 30

44 A barrister must not make submissions or express views to a court ...

Answer 30

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 31

45 A barrister must not in the presence of any of the parties or solicitors deal with a court ...

Answer 31

A barrister must not in the presence of any of the parties or solicitors deal with a COURT on TERMS OF INFORMAL PERSONAL FAMILIARITY which may reasonably give the appearance that the barrister has SPECIAL FAVOUR with the court.

Question 32

46 A barrister may not make a payment or gift to any person ...

Answer 32

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 33

47 A barrister must not in any dealings with a client exercise any undue influence intended to ...

Answer 33

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 34

49 Duty to opponent - A barrister must not knowingly make...

Answer 34

A barrister must not knowingly make a FALSE OR MISLEADING statement to an opponent in relation to the case (including its compromise).

Question 35

50 Duty to opponent - A barrister must take all necessary steps to correct ...

Answer 35

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 misleading.

Question 36

51 Duty to opponent - A barrister does not make a false or misleading statement ...

Answer 36

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 37

52 Duty to opponent - A barrister must not deal directly with a party ...

Answer 37

52 A barrister must not deal directly with a PARTY, other than his or her client, who is LEGALLY REPRESENTED unless: * the substance of the dealing is solely to enquire whether the person is represented and, if so, by whom, or * the legal practitioner representing the party has previously CONSENTED, or * the barrister believes on reasonable grounds that: o the circumstances are so URGENT as to require the barrister to do so, AND o the dealing would NOT BE UNFAIR to the party.

Question 38

54 Duty to opponent - A barrister must not, outside an ex parte application or a hearing of which an opponent has had proper notice ...

Answer 38

54 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: * the COURT HAS FIRST communicated with the barrister in such a way as to require the barrister to respond to the court, or * the OPPONENT HAS CONSENTED beforehand to the barrister dealing with the court in a specific manner notified to the opponent by the barrister. 55 A barrister must promptly tell an opponent what passes between the barrister and a court in a communication referred to in rule 54.

Question 39

57 Efficient administration of justice

Answer 39

A barrister: * must seek to ensure that they DO WORK THEY ARE BRIEFED TO DO IN SUFFICIENT TIME TO ENABLE COMPLIANCE with orders, directions, rules or practice notes of the court, and * if the barrister has reasonable grounds to BELIEVE THAT THEY WILL NOT COMPLETE any such work on time, must PROMPTLY INFORM the instructing solicitor or the client.

Question 40

58 Efficient administration of justice - 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 ...

Answer 40

58 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 41

60 Responsible use of court process and privilege - coercive powers of court

Answer 41

A barrister must take care to ensure that the barrister’s advice to invoke the coercive powers of a court: * is reasonably justified by the material then available to the barrister, * is appropriate for the robust advancement of the client’s case on its merits, * is not given principally in order to harass or embarrass a person, and * 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.

Question 42

61 Responsible use of court process and privilege - allegations or suggestions under privilege

Answer 42

A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person: * are REASONABLY JUSTIFIED by the material then available to the barrister, * are appropriate for the ROBUST ADVANCEMENT of the client’s case on its MERITS, and * are NOT made principally in order to HARASS OR EMBARASS a person.

Question 43

62 - Responsible use of court process and privilege - allegations or suggestions under privilege - sex offences

Answer 43

In proceedings in which an ALLEGATION of SEXUAL ASSAULT, indecent assault or the commission of an act of INDECENCY is made and in which the ALLEGED VICTIM gives evidence: * a barrister must NOT ask that witness a question or pursue a line of questioning of that witness which is intended: o to MISLEAD OR CONFUSE the witness, or o (ii) to be UNDULY ANNOYING, harassing, intimidating, offensive, oppressive, humiliating or repetitive, and * a barrister must take into account any PARTICULAR VULNERABILITY of the witness in the MANNER AND TONE of the questions that the barrister asks. BUT 63 A barrister does NOT infringe r 62 merely because: * the question or questioning CHALLENGES THE TRUTHFULNESS of the witness or the consistency or accuracy of any statements made by the witness, or * the question or questioning requires the witness to give evidence that the WITNESS could consider to be OFFENSIVE, DISTASTEFUL OR PRIVATE.

Question 44

64 Duty to not allege matter of fact unless proper basis

Answer 44

A barrister must NOT ALLEGE any matter of FACT in: * any court document settled by the barrister, * any submission during any hearing, * the course of an opening address, or * the course of a closing address or submission on the evidence, unless the barrister believes on REASONABLE GROUNDS that the factual material already available provides a PROPER BASIS to do so.

Question 45

65 Duty to not allege criminality, fraud or serious misconduct unless proper basis

Answer 45

A barrister must not allege any matter of fact amounting to CRIMINALITY, FRAUD or other SERIOUS MISCONDUCT against any person unless the barrister believes on reasonable grounds that: * available material provides a PROPER BASIS for it, AND * the CLIENT WISHES the allegation to be made, AFTER having been advised of the SERIOUSNESS of the allegation AND of the possible consequences if case not made out.

Question 46

66 Solicitor’s opinion on proper basis (64, 65) presumed credible

Answer 46

A barrister may regard the OPINION of the INSTRUCTING SOLICITOR that material which is available to the solicitor is CREDIBLE, being material which appears to the barrister from its nature to support an allegation to which rules 64 and 65 apply, as a REASONABLE GROUND for holding the belief required by those rules (except in the case of a closing address or submission on the evidence).

Question 47

67 A barrister must not make a suggestion in XXN of a witness on credit unless ...

Answer 47

67 A barrister must NOT make a SUGGESTION in XXN on CREDIT unless the barrister believes on REASONABLE GROUNDS that ACCEPTANCE of the suggestion would DIMINISH THE CREDIBILITY of the evidence of the witness.

Question 48

68 If alleging 3py criminality in mitigation, mustn’t reveal identity unless necessary

Answer 48

A barrister who has instructions which justify submissions for the client in MITIGATION of their criminality which involve ALLEGATIONS of serious misconduct against a THIRD PARTY not able to answer the allegations must seek to AVOID DISCLOSING the other person’s IDENTITY (directly or indirectly) UNLESS the barrister believes on reasonable grounds that the disclosure is NECESSARY for the proper conduct of the client’s case.

Question 49

69 Integrity of evidence

Answer 49

A barrister must not: * ADVISE OR SUGGEST to a witness that FALSE OR MISLEADING EVIDENCE should be given nor condone another person doing so, or * COACH A WITNESS by ADVISING WHAT ANSWERS the witness should give to questions which might be asked.

Question 50

70 Integrity of evidence - testing in conference does not breach R69

Answer 50

A barrister does NOT breach r 69 by expressing a general admonition to tell the truth, or by QUESTIONING AND TESTING IN CONFERENCE the version of evidence to be given by a prospective witness, including DRAWING THE WITNESS' ATTENTION to INCONSISTENCIES or other difficulties with the evidence, but MUST NOT ENCOURAGE the witness to give EVIDENCE DIFFERENT from the evidence which the witness believes to be true.

Question 51

71 Must not confer with multiple Ws at same time unless special circs require

Answer 51

A barrister must NOT CONFER WITH, or condone another legal practitioner conferring with, MORE THAN ONE LAY WITNESS including a party or client AT THE SAME: * about any issue which there are reasonable grounds for the barrister to believe may be CONTENTIOUS at a hearing, and * where such CONFERRAL COULD AFFECT EVIDENCE to be given by any of those witnesses, UNLESS the barrister believes on reasonable grounds that SPECIAL CIRCUMSTANCES require such a conference.

Question 52

73 Must not confer with any W under XXN unless ...

Answer 52

A barrister must NOT CONFER with ANY WITNESS including a party or client called by the barrister on any matter while that witness remains UNDER XXN, unless: * the CROSS-EXAMINER HAS CONSENTED beforehand to the barrister doing so, OR * the barrister: o believes on REASONABLE GROUNDS that special circumstances (including the need for instructions on a proposed compromise) require such a conference, AND o has, if possible, INFORMED THE XXNER beforehand of the barrister’s intention to do so, and o otherwise does inform the cross-examiner as soon as possible of the barrister having done so.

Question 53

76 Media comment - any proceeding

Answer 53

A barrister must NOT publish or take any step towards the PUBLICATION of any material concerning any proceeding which: * is known to the barrister to be INACCURATE, * discloses any CONFIDENTIAL information, or * appears to or does express the OPINION of the barrister on the MERITS of a current or potential proceeding or on any issue arising in such a proceeding, OTHER THAN in the course of GENUINE EDUCATIONAL OR ACADEMIC DISCUSSION on matters of LAW.

Question 54

77 Media comment - appearing in proceeding

Answer 54

A barrister must NOT publish or take any step towards the publication of any material concerning any CURRENT PROCEEDING in which the barrister is APPEARING or any POTENTIAL proceeding in which a barrister is likely to appear, other than: * a barrister may supply answers to unsolicited questions concerning a current proceeding IF the answers are limited to info on the IDENTITY of the parties or of any witness already called, the nature of the ISSUES in the case, the nature of the ORDERS MADE or JUDGMENT GIVEN, and the CLIENT'S INTENTION as to any further steps in the case, or * a barrister may, where it is not contrary to legislation or court practice and at the request of the client or instructing solicitor or in response to unsolicited questions supply for publication: * COPIES OF PLEADINGS in their current form which have been FILED AND SERVED in accordance with the court’s requirements, * copies of AFFIDAVITS OR WITNESS STATEMENT, which have been read, tendered or verified in open court, clearly marked so as to show any parts which have not been read, tendered or verified or which have been disallowed on objection, * copies of transcript of evidence given in open court if permitted by copyright, * copies of EXHIBITS ADMITTED in open court and without restriction on access.

Question 55

78 Media comment - advising client

Answer 55

A barrister: * may if requested advise a client about dealings with the media but not in a manner which is calculated to interfere with the proper administration of justice, and * does not breach rr 76 or 77 simply by advising a client subject to a media report who has sought advice in relation to that report, that the client may take appropriate steps to present the client’s own position for publication.

Question 56

79 Delinquent or guilty clients

Answer 56

A barrister who, LEARNS FROM A CLIENT or a WITNESS CALLED on behalf of that client DURING a hearing OR after judgment or decision is reserved and while it remains PENDING, that the client (or the witness called on behalf of the client): * has LIED in a MATERIAL PARTICULAR to the court or procured another person to so lie, * has FALSIFIED A DOCUMENT which has been tendered (or procured another person to do so, * has SUPPRESSED MATERIAL EVIDENCE upon a topic where there was a POSITIVE DUTY TO MAKE DISCLOSURE to the court (or procured another person to do so), must REFUSE TO TAKE FURTHER PART in the case UNLESS the client authorises the barrister to INFORM THE COURT of the lie, falsification or suppression. If the client aso authorises, must inform court ASAP; if client does not authorise, must not inform court (and take no further part).

Question 57

80 Client confesses but pleads NG

Answer 57

A barrister briefed to appear in criminal proceedings whose client confesses guilt to the barrister but maintains a plea of not guilty: (a) should, SUBJECT TO THE CLIENT ACCEPTING THE FOLLOWING CONSTRAINTS, continue to act in the client’s defence, (b) must NOT FALSELY SUGGEST that SOME OTHER PERSON committed the offence, (c) must NOT SET UP AN AFFIRMATIVE CASE inconsistent with the confession, (d) must ensure that the PROSECUTION IS PUT TO PROOF of its case, (e) MAY argue that the EVIDENCE AS A WHOLE DOES NOT PROVE that the client is guilty, (f) may argue that for REASON OF LAW the client is not guilty of the offence charged, (g) may argue that for any other reason not prohibited by (b) or (c) the client should not be convicted of the offence charged, and (h) MUST NOT CONTINUE TO ACT IF THE CLIENT INSISTS ON GIVING EVIDENCE DENYING GUILT or requires the making of a statement asserting the client’s innocence.

Question 58

81 Client plans to disobey order

Answer 58

A barrister whose client informs the barrister that the CLIENT INTENDS TO DISOBEY A COURT ORDER: (a) MUST ADVISE the client AGAINST that course and warn the client of its DANGERS, and (b) must NOT advise the client how to carry out or CONCEAL that course, but (c) must NOT inform the COURT or the OPPONENT of the client’s intention UNLESS: (i) the CLIENT HAS AUTHORISED the barrister to do so beforehand, OR (ii) the barrister believes on REASONABLE GROUNDS that the CLIENT'S CONDUCT constitutes a THREAT to any person’s safety.

Question 59

83 Prosecutor’s duties - GENERAL

Answer 59

A prosecutor must: fairly ASSIST THE COURT to arrive at the truth, must seek impartially to have the WHOLE OF THE RELEVANT EVIDENCE placed intelligibly before the court, and must seek to ASSIST THE COURT WITH ADEQUATE SUBMISSIONS OF LAW to enable the law properly to be applied to the facts.

Question 60

84 Prosecutor’s duties - full and firm presentation

Answer 60

A prosecutor must not press the prosecution’s case for a conviction beyond a full and firm presentation of that case.

Question 61

85 Prosecutor’s duties - not inflame or bias

Answer 61

A prosecutor must not, by language or other conduct, seek to inflame or bias the court AGAINST THE ACCUSED.

Question 62

86 Prosecutor’s duties - propositions of fact or law

Answer 62

A prosecutor must NOT argue any proposition of fact or law which the prosecutor does not believe on REASONABLE GROUNDS to be capable of CONTRIBUTING TO A FINDING OF GUILT and also to carry weight.

Question 63

87 Prosecutor’s duties - must disclose to opponent ...

Answer 63

A prosecutor MUST DISCLOSE to the opponent AS SOON AS PRACTICABLE ALL MATERIAL AVAILABLE to the prosecutor or of which the prosecutor becomes aware which COULD CONSTITUTE EVIDENCE RELEVANT to the GUILT OR INNOCENCE of the accused other than material subject to statutory immunity (UNLESS the prosecutor believes on REASONABLE GROUNDS that such disclosure, or full disclosure, would SERIOUSLY THREATEN THE INTEGRITY of the administration of justice in those proceedings or the SAFETY of any person). 88 A prosecutor who has DECIDED NOT TO DISCLOSE MATERIAL to the opponent under rule 87 MUST CONSIDER WHETHER: * the charge against the accused to which the material is relevant should be withdrawn, * the accused should be faced only with a lesser charge to which such material would not be so relevant.

Question 64

89 Prosecutor must call all Ws unless ...

Answer 64

A prosecutor must call as part of the prosecution’s case all witnesses: (a) whose testimony is admissible and necessary for the presentation of all of the relevant circumstances, or (b) whose testimony provides reasonable grounds for the prosecutor to believe that it could provide admissible evidence relevant to any matter in issue, unless: (i) the opponent consents to the prosecutor not calling a particular witness, (iv) the prosecutor believes on reasonable grounds that the testimony of a particular witness is plainly untruthful or is plainly unreliable...

Question 65

97 Investigative tribunals

Answer 65

A barrister who appears as counsel assisting 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.

Question 66

101 Briefs which must be refused or must be returned

Answer 66

A barrister MUST refuse to accept or retain a brief or instructions to appear before a court IF: (a) the barrister has INFO which is CONFIDENTIAL TO ANY OTHER PERSON IN THE CASE other than the prospective client, AND: * the information may, as a REAL POSSIBILITY, BE MATERIAL to the prospective client’s case, AND * the person entitled to the confidentiality has NOT CONSENTED to the barrister using the information as the barrister thinks fit in the case; (b) the CLIENT'S INTEREST in the matter or otherwise is or would be in CONFLICT with the BARRISTER'S OWN INTEREST OR THE INTEREST OF AN ASSOCIATE; o associate ‘means a CORPORATION, ENTITY OR TRUST in which the barrister has a MATERIAL BENEFICIAL INTEREST or a member of the barrister’s IMMEDIATE FAMILY.’ (c) the barrister has a GENERAL OR SPECIAL RETAINER which gives, and gives only, a right of first refusal of the barrister’s services to ANOTHER PARTY in the case and the barrister is offered a brief to appear in the case for the other party within the terms of the retainer, (d) the barrister has reasonable grounds to believe that they MAY AS A REAL POSSIBILITY BE A WITNESS in the case; (e) the brief is to appear on an appeal and the barrister was a witness in the case at first instance; (f) the barrister has reasonable grounds to believe that the barrister’s OWN PERSONAL OR PROFESSIONAL CONDUCT MAY BE ATTACKED in the case; (g) the barrister has a MATERIAL FINANCIAL OR PROPERTY INTEREST IN THE OUTCOME of the case, apart from the prospect of a fee; (h) the brief is on the ASSESSMENT OF COSTS which include a DISPUTE as to the propriety of the fee paid or PAYABLE TO THE BARRISTER, or is for the recovery from a former client of costs in relation to a case in which the barrister appeared for the client; (i) the brief is for a party to an arbitration in connection with the arbitration and the barrister has previously advised or appeared for the arbitrator in connection with the arbitration, (j) the brief is to APPEA Rin a contested or ex parte hearing BEFORE the barrister’s parent, sibling, spouse or child or a member of the barrister’s household, or before a bench of which such a person is a member, (k) there are reasonable grounds for the barrister to believe that the FAILURE OF THE CLIENT TO RETAIN AN INSTRUCTING SOLICITOR would, as a real possibility, SERIOUSLY PREJUDICE the barrister’s ability to advance and protect the client’s interests in accordance with the law including these Rules, (l) the barrister has ALREADY ADVISED OR DRAWN PLEADINGS FOR ANOTHER PARTY to the matter, (m) the barrister has ALREADY DISCUSSED (even on an informal basis) the facts with ANOTHER PARTY WITH AN ADVERSE INTEREST in the matter.

Question 67

103 Must refuse brief if have info confidential to another person with diffERENT interests…

Answer 67

A barrister MUST refuse a brief to advise if the barrister has INFO CONFIDENTIAL to any person with DIFFERENT INTERESTS from those of the prospective client IF: * the INFO MAY, as a real possibility, AFFECT THE PROSPECTIVE CLIENT'S INTERESTS in the matter on which advice is sought OR may be detrimental to the interests of the first person, AND * the PERSON ENTITLED TO THE CONFIDENTIALITY HAS NOT CONSENTED beforehand to the barrister using the information as the barrister thinks fit in giving advice.

Question 68

105 Briefs which may be refused or returned

Answer 68

A barrister MAY refuse or return a brief to appear before a court: (a) DIRECT BRIEF - if the brief is not offered by a solicitor, (b) if the barrister considers on reasonable grounds that the TIME OR EFFORT REQUIRED for the brief threatens to PREJUDICE THE BARRISTER'S PRACTICE or other professional or personal engagements, (c) if the INSTRUCTING SOLICITOR does NOT agree to be responsible for payment of FEE, (d) if the barrister has reasonable grounds to doubt that the fee will be paid reasonably promptly or in accordance with the costs agreement, (e) if the brief may, as a real possibility, REQUIRE THE BARRISTER TO XXN A FRIEND OR FAMILY MEMBER, (f) if the SOLICITOR DOES NOT COMPLY with a request by the barrister for APPROPRIATE ATTENDANCES by the solicitor, solicitor’s clerk or client representative for the purposes of: (i) ensuring that the barrister is provided with ADEQUATE INSTRUCTIONS, (ii) ensuring that the client adequately understands the barrister’s advice, (iii) avoiding any delay in the conduct of any hearing, and (iv) protecting the client or the barrister from any disadvantage or inconvenience which may, as a real possibility, otherwise be caused, (g) if the BARRISTER'S ADVICE as to the preparation or conduct of the case, not including its compromise, has been REJECTED OR IGNORED BY THE INSTRUCTING SOLICITOR OR CLIENT, (h) if the prospective client is also the prospective instructing solicitor, or a partner, employer or employee of the prospective instructing solicitor, and has refused the barrister’s request to be instructed by a solicitor independent of the prospective client and the prospective client’s firm, (i) if the barrister, being a SENIOR COUNSEL considers on reasonable grounds that the brief does NOT require the services of a Senior Counsel, (j) if the barrister, being a Senior Counsel, considers on reasonable grounds that the BRIEF ALSO REQUIRES A JUNIOR COUNSEL and none has been briefed, (k) where there IS a PERSONAL OR BUSINESS RELATIONSHIP between the barrister and the CLIENT or ANOTHER PARTY, a WITNESS, or another LEGAL PRACTITIONER representing a party, (l) where the brief is to appear before a JUDGE whose PERSONAL OR BUSINESS RELATIONSHIP with the barrister is such as to give rise to the apprehension that there may not be a fair hearing, or (m) in accordance with the terms of a costs agreement which provide for return of a brief.

Question 69

109 Can’t return briefs to attend social occasion UNLESS ...

Answer 69

A barrister must NOT return a brief to appear on a particular date in order to attend a SOCIAL OCCASION unless the instructing solicitor or the client has EXPRESSLY PERMITTED the barrister to do so.

Question 70

110 If return permitted, must return with enough time ...

Answer 70

A barrister who wishes to return a brief which the barrister is permitted to return must do so in enough time to give another legal practitioner a proper opportunity to take over.

Question 71

113 Devilling

Answer 71

A barrister does not breach rule 12 [Sole practitioner] by carrying out a SPECIFIC TASK OF RESEARCH or CHAMBER WORK given to the barrister by another barrister, or by giving such a task to another barrister, so long as: * the barrister briefed to do the work takes full personal responsibility, * the work is delivered under the name of the barrister who was briefed, * the arrangement between the barristers does not go beyond an ordinary devilling or reading arrangement and in particular does not involve any standing retainer or employment terms, and * the arrangement between the barristers does not provide and is not intended to enable the barrister giving the task to make a profit from the other barrister’s work, over and above reasonable remuneration for supervision etc.

Question 72

114 Confidentiality & conflicts - GENERAL

Answer 72

A barrister must NOT DISCLOSE (except as compelled by law) OR USE in any way CONFIDENTIAL INFORMATION obtained by the barrister in the course of practice concerning ANY PERSON TO WHOM THE BARRISTER OWES SOME DUTY or obligation to keep the information confidential UNLESS or until: (a) the information is LATER OBTAINED FROM ANOTHER PERSON who is NOT bound by the confidentiality owed by the barrister to the first person AND who does not give the information confidentially to the barrister, OR (b) the person has CONSENTED to the barrister disclosing or using the information generally or on specific terms.

Question 73

119 Multiple clients

Answer 73

A barrister who is briefed to appear for two or more parties in any case must determine ASAP whether the interests of the clients may, as a real possibility, conflict and, if so, the barrister must then RETURN the brief for: * ALL THE CLIENTS in the case of confidentiality to which r 114 would apply, OR * ONE OR MORE OF THE CLIENTS so as to remove that possibility of conflict.

Question 74

120 Conflicts of interest between client and instructing solicitor

Answer 74

A barrister who believes on reasonable grounds that the INTERESTS of the CLIENT may conflict with those of the instructing solicitor, OR that the client may have a CLAIM against the instructing solicitor, MUST: * ADVISE THE INSTRUCTING SOLICITOR of the barrister’s belief, AND * if the instructing solicitor does not agree to advise the client of the barrister’s belief, seek to advise the client in the presence of the instructing solicitor of the barrister’s belief.

Question 75

122 Must not disclose comms with legal reps for other parties to the court unless ...

Answer 75

122 A barrister must not disclose to the court, whether in submissions, XIC, XXN or otherwise, any communication between the barrister and legal representatives appearing for any other party to the proceedings: * except by CONSENT; * unless what occurred resulted in the creation of some contractual or other legal relationship, * 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 * unless DISCLOSURE IS REQUIRED by the court.

Question 76

123 Anti-discrimination and harassment

Answer 76

A barrister must not in the course of practice, engage in conduct which constitutes: * discrimination, * sexual harassment, or * workplace bullying.