Ethics

Question 1

What are the objects of the BR?

Answer 1

The object of these Rules is to ensure that barristers:
(a) act in accordance with the general principles of professional conduct,
(b) act independently,
(c) recognise and discharge their obligations in relation to the administration of justice, and
(d) provide services of the highest standard unaffected by personal interest.

Question 2

What are the principles of the BR?

Answer 2

These Rules are made in the belief that:
(a) barristers owe their paramount duty to the administration of justice,
(b) barristers must maintain high standards of professional conduct,
(c) barristers as specialist advocates in the administration of justice, must act honestly, fairly, skilfully, bravely and with competence and diligence,
(d) barristers owe duties to the courts, to their clients and to their barrister and solicitor colleagues,
(e) barristers should exercise their forensic judgments and give their advice independently and for the proper administration of justice, notwithstanding any contrary desires of their clients, and
(f) the provision of advocates for those who need legal representation is better secured if there is a Bar whose members:
(i) must accept briefs to appear regardless of their personal beliefs,
(ii) must not refuse briefs to appear except on proper professional grounds, and
(iii) compete as specialist advocates with each other and with other legal practitioners as widely and as often as practicable.

Question 3

Who do the rules apply to?

Answer 3

Application of Rules
Except as otherwise provided these Rules apply to:
(a)
(b)
(c)
a barrister whose practising certificate is issued in a participating jurisdiction, except to the extent that the conduct of the barrister in relation to practice in a non- participating jurisdiction is regulated by Barristers’ Rules for that jurisdiction,
a barrister whose practising certificate is issued in a non-participating jurisdiction, in relation to practice in a participating jurisdiction, including work, wherever performed, in relation to such practice, and
a barrister who is employed by the Crown or who holds a statutory office except that he or she is exempt from rules 11–22 and 101–112 while acting pursuant to that employment or office.

Question 4

Other Standards?

Answer 4

These Rules are not intended to be a complete or detailed code of conduct for barristers. Other standards for, requirements of and sanctions on the conduct of barristers are found in the inherent disciplinary jurisdiction of the Supreme Court, the legislation regulating the legal profession and in the general law (including the law relating to contempt of court).

Question 5

What are the advocacy rules?

Answer 5

8 A barrister must not engage in conduct which is:
(a) dishonest or otherwise discreditable to a barrister,
(b) prejudicial to the administration of justice, or
(c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.
Another vocation
A barrister must not engage in another vocation which:
(a) is liable to adversely affect the reputation of the legal profession or the barrister’s own reputation,
(b) is likely to impair or conflict with the barrister’s duties to clients, or
(c) prejudices a barrister’s ability to attend properly to the interests of the barrister’s clients.

Question 6

Use of Professional Qualification
R 10

Answer 6

Use of professional qualification
A barrister must not use or permit the use of the professional qualification as a barrister for the advancement of any other occupation or activity in which he or she is directly or indirectly engaged, or for private advantage, unless that use is usual or reasonable in the circumstances.

Question 7

What is the work of a barrister?

Answer 7

Barristers’ work consists of: (a) appearing as an advocate,
(b) preparing to appear as an advocate,
(c) negotiating for a client with an opponent to compromise a case,
(d) representing a client in or conducting a mediation or arbitration or other method of alternative dispute resolution,
(e) giving legal advice,
(f) preparing or advising on documents to be used by a client or by others in relation to the client’s case or other affairs,
(g) carrying out work properly incidental to the kinds of work referred to in (a)–(f), and (h) such other work as is from time to time commonly carried out by barristers.

Question 8

Sole Practitioner?

Answer 8

A barrister must be a sole practitioner, and must not:
(a) practise in partnership with any person,
(b) practise as the employer of any legal practitioner who acts as a legal practitioner in the course

of that employment,
(c) practise as the employee of any person,
(d) be a director of an incorporated legal practice, or
(e) practise by or through an unincorporated legal practice.

Question 9

What must a barrister not do?

Answer 9

A barrister must not, subject to rules 14 and 15:
(a) act as a person’s general agent or attorney in that person’s business or dealings with others,
(b) conduct correspondence in the barrister’s name on behalf of any person otherwise than with the opponent,
(c) place herself or himself at risk of becoming a witness, by investigating facts for the purposes of appearing as an advocate or giving legal advice, otherwise than by:
(i) conferring with the client, the instructing solicitor, prospective witnesses or experts,
(ii) examining documents provided by the instructing solicitor or the client, as the case may be, or produced to the court,
(iii) viewing a place or things by arrangement with the instructing solicitor or the client, or
(iv) library research,
(d) act as a person’s only representative in dealings with any court, otherwise than when actually appearing as an advocate,
(e) be the address for service of any document or accept service of any document,
(f) commence proceedings or file (other than file in court) or serve any process of any court,
(g) conduct the conveyance of any property for any other person,
(h) administer any trust estate or fund for any other person,
(i) obtain probate or letters of administration for any other person,
(j) incorporate companies or provide shelf companies for any other person,
(k) prepare or lodge returns for any other person, unless the barrister is registered or accredited to do so under the applicable taxation legislation, or
(l) hold, invest or disburse any funds for any other person.

Question 10

Exceptions to work that a barrister must not do?

Answer 10

A barrister does not breach rule 13 by doing any of the matters referred to in that rule, without fee and as a private person not as a barrister or legal practitioner.
A barrister does not breach rule 13 (a), (h) or (l) if the barrister becomes such an agent, is appointed so to act or becomes responsible for such funds as a private person and not as a barrister or legal practitioner

Question 11

What if a barrister is asked to engage in legal work, which is not barristers work?

Answer 11

A barrister who is asked by any person to do work or engage in conduct which is not barristers’ work, or which appears likely to require work to be done which is not barristers’ work, must promptly inform that person:
(a) of the effect of rules 11, 12, and 13 as they relevantly apply in the circumstances, and (b) that, if it be the case, solicitors are capable of providing those services to that person.

Question 12

What is the cab rank rule?

Answer 12

A barrister must accept a brief from a solicitor to appear before a court in a field in which the barrister practises or professes to practise if:

A barrister must not set the level of an acceptable fee, for the purposes of rule 17 (c), higher than the barrister would otherwise set if the barrister were willing to accept the brief, with the intent that the solicitor may be deterred from continuing to offer the brief to the barrister.
A barrister must not require that any other particular legal practitioner be instructed or briefed so as in any way to impose that requirement as a condition of the barrister accepting any brief or instructions.
A barrister must not make or have any arrangement with any person in connection with any aspect of the barrister’s practice which imposes any obligation on the barrister of such a kind as may prevent the barrister from:
(a) accepting any brief to appear for reasons other than those provided by the exceptions to the cab-rank principle in rule 101, 103, 104 or 105, or
(b) competing with any other legal practitioner for the work offered by any brief for reasons other than those referred to in rule 101, 103, 104 or 105.
Nothing in these Rules shall be taken to oblige a barrister to accept instructions directly from a person who is not a solicitor.
A barrister who proposes to accept instructions directly from a person who is not a solicitor or officer of a government department or agency whose usual duties include engaging lawyers must:
(a) (b)
(c) (d)
the brief is within the barrister’s capacity, skill and experience,
the barrister would be available to work as a barrister when the brief would require the barrister to appear or to prepare, and the barrister is not already committed to other professional or personal engagements which may, as a real possibility, prevent the barrister from being able to advance a client’s interests to the best of the barrister’s skill and diligence,
the fee offered on the brief is acceptable to the barrister, and
the barrister is not obliged or permitted to refuse the brief under rule 101, 103, 104 or 105.

Question 13

What fees can a barrister set?

Answer 13

A barrister must not set the level of an acceptable fee, for the purposes of rule 17 (c), higher than the barrister would otherwise set if the barrister were willing to accept the brief, with the intent that the solicitor may be deterred from continuing to offer the brief to the barrister.

Question 14

Can a B require any other legal practitioner to be instructed?

Answer 14

A barrister must not require that any other particular legal practitioner be instructed or briefed so as in any way to impose that requirement as a condition of the barrister accepting any brief or instructions.

Question 15

Obligations imposed on a B to take the brief?

Answer 15

A barrister must not make or have any arrangement with any person in connection with any aspect of the barrister’s practice which imposes any obligation on the barrister of such a kind as may prevent the barrister from:
(a) accepting any brief to appear for reasons other than those provided by the exceptions to the cab-rank principle in rule 101, 103, 104 or 105, or
(b) competing with any other legal practitioner for the work offered by any brief for reasons other than those referred to in rule 101, 103, 104 or 105.
Nothing in these Rules shall be taken to oblige a barrister to accept instructions directly from a person who is not a solicitor.

Question 16

Direct Access Brief Rule?

Answer 16

A barrister who proposes to accept instructions directly from a person who is not a solicitor or officer of a government department or agency whose usual duties include engaging lawyers must:

(a) the brief is within the barrister’s capacity, skill and experience,
the barrister would be available to work as a barrister when the brief would require the barrister to appear or to prepare, and the barrister is not already committed to other professional or personal engagements which may, as a real possibility, prevent the barrister from being able to advance a client’s interests to the best of the barrister’s skill and diligence,

(b) the fee offered on the brief is acceptable to the barrister, and
the barrister is not obliged or permitted to refuse the brief under rule 101, 103, 104 or 105.

(a) inform the prospective client in writing of:
(i) the effect of rules 11 and 13,
(ii) the fact that circumstances may require the client to retain an instructing solicitor at short notice, and possibly during the performance of the work,
(iii) any other disadvantage which the barrister believes on reasonable grounds may, as a real possibility, be suffered by the client if the client does not retain an instructing solicitor,
(iv) the relative capacity of the barrister in performing barristers’ work to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructing solicitor to supply them, and
(v) a fair description of the advocacy experience of the barrister, and
(b) obtain a written acknowledgement, signed by the prospective client, that he or she has been informed of the matters in (a) above.

Must retain the documentation for 7 years.

Question 17

What is a barrister’s duty to the court?

Answer 17

A barrister has an overriding duty to the court to act with independence in the interests of the administration of justice (23)

A barrister must not deceive or knowingly or recklessly mislead the court (24)

A barrister must take all necessary steps to correct any misleading statement made by the barrister to a court as soon as possible after the barrister becomes aware that the statement was misleading (25)

A barrister must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the barrister contrary to the true position and is believed by the barrister to have been made by mistake (26)
A barrister seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal matters which:
(a) are within the barrister’s knowledge,
(b) are not protected by legal professional privilege, and
(c) the barrister has reasonable grounds to believe would support an argument against granting the relief or limiting its terms adversely to the client (27)

A barrister who has knowledge of matters which are within rule 27
(a) must seek instructions for the waiver of legal professional privilege if the matters are protected by that privilege so as to permit the barrister to disclose those matters under rule 27, and
(b) if the client does not waive the privilege as sought by the barrister:
(i) must inform the client of the client’s responsibility to authorise such disclosure and the

possible consequence of not doing so, and (ii) must refuse to appear on the application.

A barrister must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of:
(a) any binding authority,
(b) where there is no binding authority any authority decided by an Australian appellate court, and
(c) any applicable legislation,
known to the barrister and which the barrister has reasonable grounds to believe to be directly in point, against the client’s case. (29)

A barrister need not inform the court of matters within rule 29 at a time when the opponent tells the court that the opponent’s whole case will be withdrawn or the opponent will consent to final judgment in favour of the client, unless the appropriate time for the barrister to have informed the court of such matters in the ordinary course has already arrived or passed. (30)
A barrister who becomes aware of a matter within rule 29 after judgment or decision has been reserved and while it remains pending, whether the authority or legislation came into existence before or after argument, must inform the court of that matter by:
(a) a letter to the court, copied to the opponent, and limited to the relevant reference unless the opponent has consented beforehand to further material in the letter, or
(b) requesting the court to relist the case for further argument on a convenient date, after first notifying the opponent of the intended request and consulting the opponent as to the convenient date for further argument. (31)

A barrister need not inform the court of any matter otherwise within rule 29 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence (32)

A barrister who knows or suspects that the prosecution is unaware of the client’s previous conviction must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer (33)

A barrister must inform the court of any apparent misapprehension by the court as to the effect of an order which the court is making, as soon as the barrister becomes aware of the misapprehension (34)