BR 101-123 Flashcards
What briefs must be returned?
A barrister must refuse a brief to appear before a court if
(a) the barrister has confidential information, to any other person involved in the case, aside from a prospective client, and:
(i) the information may, as a real possibility, be material to the prospective client’s case, and
(ii) the person entitled to the confidentiality has not consented to the barrister using the information how the barrister sees fit in the case.
(b) client’s interests in the matter would be in conflict with the barristers own interest or the interest of an associate
(c) barrister has a special retainer which gives the right of first refusal of the barristers services to another party and the barrister is briefed to appear in the case of the other party within terms of the retainer
(d) the barrister on reasonable grounds to believe that the barrister may, as a real possibility be the witness in the case
(e) brief is on appeal and the barrister was a witness in teh case at first instance
(f) the barrister has grounds to believe that their own personal and professional conduct will be attacked in the case
(g) Barrister has material or financial property interest in the case.
(h) Brief is for an assessment of costs
(i) Brief is to appear in an arbitration
(j) brief is to appear in a contested or ex parte hearing before a relative of a barrister or before a bench that the barrister is a member
(k) ther are reasonable grounds to believe failure of the client to retain a solicitor would seriously prejudice the B’s ability to abide by rule 35
(l) the barrister has advised or drawn pleadings for another matter or
(m) the barrister has discussed in any detail ( even on an informal basis) with another party with an adverse interest in the matter the facts out of which the matter arises
(l)
r102
A barrister need not refuse or return a brief, notwithstanding the application of r101(f) ( personal or professional conduct attacked in the case) if he believes on reasonable grounds that:
(a) the allegation have purposefully been raise in order for the barrister to be prevented from accepting the brief, and (b) those allegations can be met without materially altering the barrister’s disinteredness
r103
A Barrister must refuse a brief to advise if the barrister has information confidential to the interests of any person other than a prospective client if
(a) the information may, as a real possibility, affect the prospective client’s interest in the matter on advice which is sought or may be detrimental to the interests of the first person, and
(b) the person entitled to the confidentiality has not consented to the barrister using the info in a way that she thinks fit
r104
A barrister must not accept a brief to appear on a day when the barrister is already committed to appear or is reasonably likely to be committed to appear, if appearing on one of the briefs would not in the normal course of events enable the barrister to appear on the other brief.
r 105 ( briefs that may be returned)
(a)not offered by a soli
(b) time and effort required threatens the barrister’s other professional or personal engagements
(c) instructor does not agree to the payment of the B’s fee
(d) B has the grounds to believe that the fee will be paid promptly and in accordance with the costs agreement
(e) the brief may require the barrister to criticise a friend or relative
(f) soli does not comply with the barristers request for appropriate attendance for the purposes of
(i) ensuring B provided with adequate instructions to permit the Barrister o carry out the work
(ii) ensuring that the client understands the B’s advice
(iii) avoiding any delay in the conduct of the hearing and
(iv) protecting the client or the barrister from any inconvenience that may be caused
(g) the barrister’s advice as to the preparation of the case has been rejected
(h) prospective client is also the prospective instructor and refused the B’s request to be instructed by an independent soli
(j) If the B, being senior counsel, reasonable grounds for junior counsel to be briefed
(k) personal or business relationship between the barrister and the client or another party, a witness, legal practitioner representing the party
(l) 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
(m) in accordance with the cost agreement which provided for the return of the brief.
r 106
A B may return a brief accepted under a conditional costs agreement, if the barrister considers the client unreasonably rejected an offer to compromise, contrary to the barristers advice.
r108
A barrister must not return a brief to appear in order to accept another brief to appear, unless the instructing soli/ client has first permitted the barrister to do so beforehand, after the barrister has advised the client of the circs in which the barrister wishes to return the brief and the terms of this rule and rule 110 - being that he must do so in reasonable time to enable another legal prac to take over, even if that means practically applying for an adjournment.
r 109
A barrister must not return a brief to appear in order to attend a social occasion unless the instructing soli or client has expressly permitted the barrister to do so.
r110
A Barrister who wishes to return a brief must do so with enough time to enable another legal prac to take over.
r111
A barrister must alert an instructor, as soon as the barrister has reasonable grounds to believe that he or she will be unable to complete the work or appear as stipulated by the brief or within a reasonable time frame that has been stipulated
r112
A barrister must not hand over a brief to another barrister to conduct the case or any court appearance unless the instructing soli has consented to that course
Devilling
r 113 provides an exception to the general rule that a barrister cannot be an employee of any other person. Thus he will not be considered to breach rule 12 if, he his given work by another barrister, so long as:
(a) the B who was briefed takes full responsibility
(b) work delivered in in the name of B1
(c) the arrangement does not go beyond an ordinary devilling or reading arrangement and in particular does not involve any standing retainer or any employment terms and
(d) the arrangement is not intended to enable the barrister giving the task to profit from the other barristers work, over and above reasonable renumeration for supervision and responsibility for the work.
r114
A barrister must not disclose or use in a way confidential information obtained by the barrister in the course of practice concerning any other person to whom the barrister owes some duty or obligation to keep the information confidential unless or until (a) the info comes to light publicly or (b) the person has consented to the disclosure in general or specific terms
r115
A barrister must not disclose or use the info in any way, other than the way permitted by the specific terms of the person’s consent
r116
The barrister does not breach rule 114/115 by sharing the info with admin staff for the purposes of undertaking clerical or administrative work in relation to the matter, to a reader or a devil.
r117
A barrister who is shown the brief as a reader is covered by this confidentiality agreement.
r118
A barrister must return a brief to appear as soon as he becomes aware that he has info that may be confidential to a person other than the client and may be material to the client’s case and the the barrister is prohibited from disclosing this info unless the person entitled to the confidentiality consents to using the info as the barrister sees fit.
r119
A barrister who is briefed to appear on behalf of two parties, in ay case must determine as soon as possible - whether the interests of the clients are likely to conflict, and if so the barrister must return the brief for
(a) all clients in a case to which r114 might apply
(b) one or more to remove the possibility of that conflict
r120
A barrister who believes on reasonable grounds that the interests of the client may conflict with that of a soli - or the client may have a claim against an instructing soli, must
(a) advise the client of the barristers belief
(b) if the instructing soli does not agree to advise the client of the barrister’s belief, seek to advise the client in the presence of the instructing soli of the barristers belief.
r121
A barrister must not give an undertaking to the court on behalf of a soli or client without express authority
r122
A barrister, must not disclose to the court, whether in submissions, examination, cross-examination or otherwise, any communication between the barrister and the legal representatives appearing for the proceedings. for any other party to proceedings
(a) except by consent
(b)unless what occurred resulted in creation of some contractual or legal relationship
(c) unless i was expressly stated before or at the commencement of such communication that matters communicated should not be regarded as being without prejudice or privileged from disclosure or
(d) unless disclosure is required by the court
r123
A barrister must not in the course of or in connection with his legal practice or their profession, engage in conduct that is
(a) discrimination
(b) sexual harassment
(c) bullying
(2) For the purposes of subrule (1), conduct in connection with a barristers profession, includes, but is not limited to :
(a) conduct at a social occasion
(b) interactions with a person with whom a barrister has or had a professional relationship.
