Ethics

Question 1

What is the object of the Barristers Rules?

Answer 1

To ensure barristers act in accordance with general principles of professional conduct, act independently, further the administration of justice, and provide services of a high standard unaffected by personal interest: r3

Question 2

What are the principles of barristers?

Answer 2

Per rule 4:
- Paramount duty to administration of justice
- High standards of professional conduct
- Act honestly, fairly, skillfully, bravely, with competenence and diligence
- Duty to courts, clients and colleagues
- Exercise forensics judgment and give advice independently
- Accept brief except on proper grounds, regardless of personal belief

Question 3

Must a barrister be a sole practitioner?

Answer 3

Yes: r12 (other than r113 deviling)

Question 4

What is the cab rank rule?

Answer 4

Barrister must accept brief if within capacity, skill and experience, availability, and fee, unless obliged or permitted to refuse: r17.

Question 5

When MUST a barrister refuse a brief?

Answer 5

Per r101:
- B has confidential information
- C conflict of interest with B (see r103)
- C’s failure to retain an IS prejudices B’s ability
- B has already advised another party

Per 104 if briefed to appear that day on a different brief.

Question 6

When MAY a barrister refuse a brief?

Answer 6

Per r105:
- not from solicitor
- time or effort would prejudice other engagements
- S won’t accept responsibility for payment
- doubt fee will be paid promptly
- B’s advice rejected or ignored
- pre-existing relationship with someone else involved in matter

Question 7

Can a barrister accept direct briefs?

Answer 7

Yes, but must provide the warnings in r22 and obtain signed acknowledgement

Question 8

What are a barrister’s duties to the Court?

Answer 8

• Duty of honesty and administration of justice: r8
• Duty not to deceive or mislead court: r24 (and correct any such statement: r25)
• Duty to inform court of binding authority: r29

Duty to court overrides duty to client: r23.

Question 9

What are a barrister’s duties to the opponent?

Answer 9

• Duty not to make a false or misleading statement to an opponent: r49 (and correct any such statement: r50, but not required to correct an error: r51)

Question 10

What are a barrister’s duties to the client?

Answer 10

• Duty to promote and protect client’s best interests: r35
• Duty to give alternatives to contested adjudication: r36
• Duty to help client understand issues: r37
• Duty to advise criminal defendants of any possible advantage: r38
• Duty to put prosecution to proof if client is guilty (but not put on affirmative defence): r80
• Duty not to act as mere mouthpiece: r42
• Duty to exercise forensic judgment: r43
• Duty to do briefed work in sufficient time: r57

Question 11

Can a barrister coach a witness?

Answer 11

No (r69) but may test witness in conference and draw attention to inconsistencies or other difficulties with the evidence: r70.

Question 12

What are the prosecutor’s duties?

Answer 12

• Assist the court arrive at the truth: r83
• Not go beyond a full and firm presentation of the case: r84
• Disclose all relevant material: r87

Question 13

What are the barrister’s duties of confidentiality?

Answer 13

Must not disclose CI without consent: r114 (but does not apply to members of staff or deviling: r116)

Question 14

What are the objectives of Part 4.3 - Legal Costs

Answer 14

To ensure clients are able to make informed choices about legal options and costs associated, and provide that practices not charge more than fair and reasonable amounts, and provide a framework for assessing costs: cl169

Question 15

How is whether a law practice charging more than fair and reasonable amounts to be assessed?

Answer 15

In all the circumstances proportionately and reasonably incurred having regard to the skill/experience/specialisation/seniority/complexity/novelty/difficulty/public interest/urgency/time spent/time and place/volume of documents/quality/retainer and instructions: cl172

Question 16

Is there a presumption as to whether costs are fair and reasonable?

Answer 16

Yes, if in the costs agreement and Div 3 is complied with and no contravention of Div 4

Question 17

What must a law practice do upon initial instructions given if costs are likely to exceed $750?

Answer 17

Law practice must provide written information disclosing the basis of costs calculated and an estimate of the the total along with the client’s right to negotiate a costs/billing method, receive an itemised bill, obtain the assistance of a regulatory authority, and must be satisfied the client has understood and given consent to the proposed course: cl174(1)(a)

Question 18

If there is a significant change to the proceedings and costs are likely to exceed $750?

Answer 18

The law practice must disclose the change and any chagnes to costs payable with sufficient and reasonable information about the impact of the chagne on costs to allow an informed decision about the future conduct of the proceedings and be satsified that the client has understood and given consent to the proposed course: cl174(1)(b)

Question 19

What if costs were expected to be under $750, but then increased to $2000?

Answer 19

Either the law practice may now provide the client with a uniform standard disclosure form per cl174(5), or comply with the cl174(1) requirements: cl174(7) and (8)

Question 20

What happens regarding costs disclosure if a law practice intends to retain another law practice (e.g. a barrister) on behalf of the client?

Answer 20

The first practice must disclosure the details in cl174 of the expected costs of the second law practice, and the second law practice must provide to the first law practice the details necessary to do so: cl175

Question 21

What if there is a third party payer that the law practice is aware of?

Answer 21

The law practice must also dislose the cl174 expected costs to the associated third party payer as relevant in writing at the time of the disclosure (or at the time that the law practice becomes aware of the third party payer): cl176

Question 22

What happens if a law pratice contravenes the costs disclosure requirements?

Answer 22

The costs agreement is void, any client or third party payer is ot required to pay until costs are assessed or any dispute determined by the regulator, and the failure amounts to UPC or PM on the part of the principle or any practitioner involved: cl178

Question 23

Does a client have a right to require and have a negotiated costs agreement?

Answer 23

Yes: cl179

Question 24

What parties can enter into a costs agreement?

Answer 24

A client and law practice, including one retained on behalf of a client by another law practice, between two law practices where one retained the other on behalf of a client, and between a law practice and a third party payer: cl180

Question 25

What form may a costs agreement take?

Answer 25

Must be in written and evidenced in writing, and either accepted in writing or by other conduct: cl180

Question 26

Can a costs agreement negotiate out of any obligation to have costs to which it relates are not subject to costs assessment?

Answer 26

No: cl180

Question 27

Is a law practice allowed to enter into a conditional agreement?

Answer 27

Yes: cl180(1)

Question 28

What form must a conditional agreement take?

Answer 28

It must be in writing in plain language and set out the circumstances that constitute a successful outcome and must be signed by the client and include a statement re the client’s right to seek independent legal advice before entering the agreement with a 5 day cooling off period: cl181

Question 29

What happens if the client invokes their right not to enter a conditional costs agreement during the cooling off period?

Answer 29

The practice may only recover the costs of services and disbursements performed before the termination with no uplift fees: cl181(5)

Question 30

Can a law practice enter into a conditional agreement for a criminal family law, or uniform law matter?

Answer 30

No: cl181(7)

Question 31

What happens if a law practice breaches the obligations for conditional costs agreements?

Answer 31

It may amount to UPC or PM by the principle and any practitioner, and makes the costs agreement void: cl181 and cl185

Question 32

Is an uplift fee allowed on a conditional costs agreement?

Answer 32

Yes, but for litigation matters only if the practice has a reasonable belief in a successful outcome that does not exceed 25% of the legal costs: cl182(1)

Question 33

What happens if a law practice has an uplift fee in a conditional costs agreement that is in breach of the rules?

Answer 33

There is a criminal penalty of 100 penalty units, and the costs agreement is void with no uplift fee payable: cl182 and cl185

Question 34

What happens if a law practice enters into a costs agreement where some amount of the costs is calculated by reference to the award or settlement or property recovered itself?

Answer 34

It may amount to UPC or PM on the part of the principal or any practitioner involved, and the costs agreement becomes void with the law practice not entitled to recover any amount in respect of the provision of legal services: cl183 and cl185.

Question 35

What are the potential penalties for a breach of the barrister’s duties?

Answer 35

• s296 unsatisfactory professional conduct (if conduct falls short of standard of competence and diligence)
• s297 professional misconduct (if substantial or consistent failure would justify finding not a fit and proper person to engage in legal practice)

Question 36

What jurisdiction does the Victorian Legal Services Commisioner have in relation to discipline?

Answer 36

They may find a lawyer has engaged in UPC (but not PM) and determine the matter by issuing a caution or reprimand, requiring an apology, requiring work be redone, requiring training, education or counselling, requiring supervision, paying a fine not more than $25k, and the recommendation of the imposition of a condition on the PC: cl299

Question 37

If a law practice wished to make a costs claim against a client, is having a costs agreement an essential ingredient?

Answer 37

Yes: cl178 and Petselis v Tatarka

Question 38

When considering whether disclosure obligations have been met, does with whom the costs agreement is with determine the matter?

Answer 38

No, because a costs agreement may be entered into by a solicitor for a barrister ON BEHALF of the client: cl180 and Petselis v Tatarka

Question 39

In Petselis v Tatarka, was the barrister Mr Tatarka entitled to recover his costs from Mr Petselis (the client), and why?

Answer 39

Yes, the magistrate found (and the appeal was dismissed) that there was a contract between the barrister and client, and on appeal it was held that finding was open notwithstanding that there was written no costs agreement. While an argument was open to find that the costs agreement was void (cl185) this argument was not run on first instance and could not be run on appeal.