Briefs which may and must be returned; devilling Flashcards
Rule 101 - must return (Confidential; conflict; retainer; witness; appeal; attacked; interest in outcome; assessment of costs; arbitration; contested relative hearing; direct briefing; pleadings; discussed)
A barrister must refuse to accept or retain a brief or instructions to appear before a court if:
● (a) the barrister has information which is CONFIDENTIAL to any other person in the case other than the 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 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,
● (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 reasonably believes 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 OUTCOME, apart from the prospect of a fee,
● (h) The brief is on 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 appear in 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, unless the hearing is before the High Court of Australia sitting all available judges,
● (k) DIRECT BRIEFING - barrister reasonably believes 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 matter,
● (m) the barrister has already 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.
Rule 101A - Former judges
● Rule 101A: current and former judges/tribunal members (expand here, add 102-105)
(1) In this rule:
court does not include tribunal.
former rules means the rule or rules of conduct (however described) in force immediately before 1 July 2015 governing the right of a barrister to appear before a court of which the barrister was a judge, justice, magistrate, coroner, master, prothonotary, registrar or other judicial officer, or a person acting in any of those offices, including rule 95 (n) of the New South Wales Barristers’ Rules and rule 92A of the Victorian Bar Practice Rules 2009.
judge includes a judge, justice, magistrate, coroner, master, prothonotary, registrar or other judicial officer, or a person acting in any of those offices, but does not include a person appointed as a judge before 1 July 2015.
tribunal means a tribunal constituted by or under an Act or a disciplinary tribunal.
(2) A barrister must refuse to accept or retain a brief or instructions to appear before a court if:
(a) the brief is to appear before a court:
(i) of which the barrister is or was formerly a judge, or
(ii) from which appeals lie to a court of which the barrister is or was formerly a judge, and
(b) the appearance would occur less than 5 years after the barrister ceased to be a judge of the court.
● (3) A barrister must refuse to accept or retain a brief or instructions to appear before a tribunal that does not sit in divisions or lists of matters to which its members are assigned if:
(a) the barrister is a full time, part time or sessional member of the tribunal, or
(b) the appearance would occur less than 2 years after the barrister ceased to be a member of the tribunal.
● (4) A barrister must refuse to accept or retain a brief or instructions to appear before a tribunal that sits in divisions or lists of matters to which its members are assigned if:
(a) the brief is to appear in a proceeding in a division or list to which the barrister is assigned as a member of the tribunal, or
(b) the brief is to appear in a proceeding in a division or list to which the barrister was assigned and the appearance would occur less than 2 years after the barrister ceased to be assigned to the division or list.
● (5) The former rules continue to apply to a barrister who was, before 1 July 2015, appointed as a judge, justice, magistrate, coroner, master, prothonotary, registrar or other judicial officer, or a person acting in any of those offices.
● (6) For the purposes of subrule (2)(a)(ii):
(a) an appeal is not to be considered to lie to the Federal Court of Australia from the Supreme Court of a State or Territory, and
(b) the Supreme Court of Victoria (in the exercise of any of its jurisdiction) is taken to be a court to which an appeal from the County Court of Victoria lies, and
● (c) the Supreme Court of New South Wales (in the exercise of any of its jurisdiction) is taken to be a court to which an appeal from the District Court of New South Wales lies.
(7) This rule does not apply in respect of a tribunal if a provision of an Act or a statutory instrument made under an Act prohibits a member or former member of the tribunal from representing a party before the tribunal or prohibits any such representation within a certain period after ceasing to be a member or in certain circumstances.
Rule 102: Exception to 101(f) - attack on own conduct
A barrister need not refuse or return a brief, notwithstanding the application of rule 101 (f) if the barrister believes on reasonable grounds that (a) allegations involving the barrister in such a way as to apply one of those rules have been raised in order to prevent the barrister from accepting the brief (b) those allegations can be met without materially diminishing the barrister’s disinterestedness.
Rule 103: Confidentiality
Barrister must refuse brief to advise if the barrister has information which is confidential to any person with different interests from those of the prospective client if (a) the information 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 (b) person entitled to the confidentiality has not consented beforehand to the barrister using the info as they think fit in giving advice
Rule 104: Double booking
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 required to appear on another brief if by appearing on one of the briefs the barrister would not in the normal course of events be able to appear on the other brief or briefs
Rule 105: When brief may be returned
A barrister may refuse or return a brief to appear before a court:
● (a) if the brief is not offered by a solicitor (direct briefs)
● (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 the payment of the barrister’s 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 cross-examine or criticise a friend or relative,
● (f) if the solicitor does not comply with a request by the barrister for appropriate attendances by the instructing solicitor, solicitor’s clerk or client representative for the purposes of:
○ (i) ensuring the barrister is provided with adequate instructions to permit the barrister properly to carry out the work or appearance required by the brief,
○ (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 the client, as the case may be,
● (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 the services of 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 terms of a costs agreement which provide for return of a brief.
Rule 106 - Conditional costs agreement
Barrister may return a brief accepted under a conditional costs agreement if the barrister considers on reasonable grounds that the client has unreasonably rejected a reasonable offer to compromise contrary to the barrister’s advice
Rule 107 - Serious criminal offence
A barrister must not return under rule 105 (above - reasons may refuse) a brief to defend a charge of a serious criminal offence unless:
● (a) the barrister believes on reasonable grounds that:
○ (i) the circumstances are exceptional and compelling, and
○ (ii) there is enough time for another legal practitioner to take over the case properly before the hearing, 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.
Rule 108 - Return to accept another brief
A barrister must not return a brief to appear in order to accept another brief to appear unless the instructing solicitor or the client in the first brief has permitted the barrister to do so beforehand, after the barrister has clearly informed the instructing solicitor or the client of the circumstances in which the barrister wishes to return the brief and of the terms of this rule and rule 110 (must return brief in enough time to give another LP time to prepare the case)
Rule 109 - Return to attend social occasion
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.
Rule 110 - Sufficient time
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 the case.
Rule 111 - Expectations management
A barrister must promptly inform the instructing solicitor or the client as soon as the barrister has reasonable grounds to believe that there is a real possibility that the barrister will be unable to appear or to do the work required by the brief in the time stipulated by the brief or within a reasonable time if no time has been stipulated
Rule 112 - Transferring conduct of case
A barrister must not hand over a brief to another barrister to conduct the case, or any court appearance within the case, unless the instructing solicitor has consented to that course.
Rule 113 - Devilling (full responsibility; under the name; not beyond; profit)
A barrister does not breach rule 12 (acting as a sole practitioner) by carrying out a specific task of research or chamber work given to them by another barrister, or by giving such a task to another, so long as:
● (a) Barrister who was briefed takes full responsibility for the work
● (b) Work is delivered under the name of the barrister who was briefed
● (c) 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
● (d) Barrister can’t make a profit from the other barrister’s work, over and above reasonable remuneration for supervision of/responsibility for other barrister’s work.
