Briefs - May be refused and returned Flashcards
A barrister may refuse or return a brief to appear before a court….[hint 9 main points]
r 99(a) the brief is not offered by a solicitor
r 99(b) barrister considers on reasonable grounds the time and effort required will prejudice the barristers practice and other commitments
r 99(c) the instructing solicitor does not agree to be responsible for the payment of the barristers fee
r 99(d) the barrister has reasonable grounds to doubt the fee will be paid promptly or in accordance with the cost agreement
r 99(e) there is a reasonable possibility that the barrister may have to cross examine or criticise a friend or relation
r 99(f) if the solicitor does not comply with the barristers request for appropriate attendances by the solicitor or client for the purposes of (i) ensuring adequate instructions are provided (ii) the client understand the barristers advise (iii) avoiding delay in the hearing (iv) protecting the client or barrister from any disadvantage or inconvenience that may be caused
r 99(k) where there is a personal or business relationship between the barrister and the client, other party, witness, or another lawyer representing the party
r 99(l) where the brief is to appear before a judge whose relationship makes it undesirable to appear before
r99(m) in accordance with the cost agreement
Question: A barrister accepted a personal injury brief to assist with reaching a negotiated settlement. The barrister was retained on a speculative fee agreement. During the course of a 4 day shuttle negotiation, the other party on the final day made an offer to settle the matter. The barristers provides advice that the offer is ‘very reasonable offer’ in the circumstances.
The client refuses to accept the offer and instructs you to refuse the offer ‘squeeze every dollar out of them until it hurts them’. The barrister no longer wishes to act for the client given how unreasonable the client is being, however he is unsure as to whether he can return the brief.
Discuss
r 100 the barrister may return brief accepted under a speculative fee agreement if the barrister considers on reasonable grounds that the client has unreasonably rejected a reasonable offer to compromise contrary to the barristers advice.
Question: You are representing a client charged with a serious criminal offence which is listed for trial in two months before the District Court.
You have received the brief and are in a position to provide the client with advise regarding prospects of success at trial, and the likely sentence should he be convicted. Your receptionist has emailed the instructing solicitor bring the client to chambers for a consult and to finalise instructions. The solicitor does not return email. The following week you email and call the instructing solicitor who again does not respond. One month later the solicitor gets back to you and says that he will attend chambers with the client tomorrow, however fails to show up because he forgot it was on…notwithstanding the appointment was re booked for the following the day the solicitor does not show up. You also asked the instructing solicitor to provide written instructions from the client regarding his version of events, and sentencing material should the matter proceed to sentence.
It is now the week before the hearing and the solicitor finally brings the client in, however the client completely changes his instructions by confessing guilt however wanting to maintain a plea of not guilty, and the solicitor has not prepared any material. You are very annoyed given weeks of prep are for nothing, and want to return the brief.
Discuss your ethical obligations
Rules: r24, r 25, r 79, r 99, r 101
App: The instructing solicitor has failed to comply with requests for attendances by the client to get instructions (r 99(f), and has ignored advice about the preparation or conduct of the case r 99(g). These are both grounds in which the brief may be returned, however r 101 restricts the returning of brief to defend a serious charge…the confession of guilt but maintaining of a plea of NG may amount to exceptional circumstances, however there is not enough time to return the brief to another legal practitioner to take over the case before the hearing…and it is unlikely the client will give consent to change barristers…can not return the brief and would need to explain to client given he has confessed guilt but wishes to plead not guilty it places restrictions on how the matter can be conducted and explain r 79. The reason for the restrictions is because barristers are an officer of the court and must not mislead the court (r25), and have a duty to the administration of justice (r 24).
Can a barrister return a brief to accept another brief?
(Hint: 2 rules)
r 102; r 104
yes however the instructing solicitor in the first brief must give consent to do so which must be given after the circumstances in which the brief is being returned are clearly explained AND the barrister doing so has returned the brief with enough time to allow another barrister an opportunity to take over the case
Can a barrister return a brief to appear on a particular date in order to attend a social event?
r 103 yes only if the instructing solicitor or client has expressly permitted the barrister to do so
When a barristers is permitted to return a brief, and wishes to do so, he must return the brief with sufficient what?
(HInt 1 rule)
r 104 must return the brief with sufficient time to allow another barrister a proper opportunity to take over the case
When a barrister forms the view that there is a real possibility that he will be unable to appear or complete the required work within the required time frame (if there is one) of the brief what must he do?
r 105 the barrister must promptly inform the instructing solicitor as soon as the barrister has reasonable grounds to believe there is a real possibility that the barrister will be unable to appear or to do the work required by the brief within the time frame stipulated by the brief or within a reasonable time if there is no time frame (see also r 56(b))
What rule says that a barrister must not hand over a brief to another barrister to conduct a case or appear on a court appearance unless the instructing solicitor has consented to that course?
r 106
