Confidentiality and conflicts; harrassment Flashcards
Rule 114 - disclosure of confidential information
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) Information is later obtained by the barrister 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 confidential information generally or on specific terms.
Rule 115 - disclosure according to consent
Can’t disclose or use in any way (except as compelled by law) confidential information in any way other than as permitted by the specific terms of the person’s consent
Rule 116 - exceptions;
Rule 117 - passing on of obligations
116: Barrister does not breach these rules by showing briefs or disclosing information to instructing solicitor, member of barrister’s staff for work purposes or to a reader or other barrister doing work as permitted by devilling arrangements
117: Such a barrister is then bound by same confidentiality obligations
Rule 118 - return of brief - confidential information
Barrister must return a brief other than a brief to appear as soon as possible after the barrister becomes aware that the barrister has information confidential to a person other than the client which may, as a real possibility, be material to the client’s case or to the advancement of the client’s interests, being information which the barrister is prohibited from disclosing or using unless the person entitled to the confidentiality consents to the barrister disclosing or using the information as the barrister thinks fit.
Rule 119 - Return of brief - conflict
A barrister who is briefed to appear for two or more parties in any case must determine as soon as possible whether the interests of the clients may, as a real possibility, conflict and, if so, the barrister must then return the brief for:
○ (a) all the clients in the case of confidentiality to which r 114 would apply, or
○ (b) one or more of the clients so as to remove that possibility of conflict.
Rule 120 - Conflict between solicitor and client
A barrister who believes on reasonable grounds that the interests of the client may conflict with the interests of the instructing solicitor, or that the client may have a claim against the instructing solicitor, must:
○ (a) advise the instructing solicitor of the barrister’s belief, and
○ (b) 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.
Rule 121 - Undertaking
A barrister must not give an undertaking to the court on behalf of a solicitor or a client without express authority of the person concerned
Rule 122 - Disclosure to court (consent; contractual; without prejudice; required)
A barrister must not disclose to the court, whether in submissions, examination, cross-examination or otherwise, any communication between the barrister and legal reps appearing in the proceedings for any other party to the proceedings:
○ (a) except by consent,
○ (b) unless what occurred resulted in the 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
Rule 123 - Harassment
Must not in the course of practice, engage in conduct which constitutes:
(a) discrimination
(b) sexual harassment
(c) workplace bullying
