Ethics Flashcards
1
Q
Can you confer with more than one witness at a time?
A
No.
Day v Perisher Blue
Rules 70
Cannot confer or condone another legal practitioner conferring with more than one lay witness including a party or a client at the same time.
UNLESS:
Rule 71
Only about undertakings to a court, admissions or confessions of fact, amendments of pleadings or otherwise.
2
Q
Can you confer with any witness while they are under cross examination?
A
No.
Day v Perisher Blue
Rule 72
3
Q
Which rules relate to Integrity of Evidence?
A
Rules 68-74
4
Q
When can you confer with more than one witness at a time??
A
Rule 71
Only about undertakings to a court, admissions or confessions of fact, amendments of pleadings or otherwise.
5
Q
What is the case that deals with integrity of evidence?
A
Day v Perisher Blue Pty Ltd
6
Q
To whom does a barrister owe an overriding duty?
A
To the court. If there is conflict between the duty to the client and duty to the court, duty to the court will prevail.
7
Q
What are the five headings which describe a barristers duty to the court?
A
- Duty of candour
- Duty of fairness
- Duty of co-operation
- Duty to maintain the dignity of the court
- Special duty of prosecutors
8
Q
Which rules deal with Duty to the Court?
A
Rules 25-36
9
Q
Where do you find the principles of the barristers rules?
A
Rule 5.
10
Q
Which rules apply to the general conduct and vocation of a barrister’s work?
A
Rules 12-20
11
Q
Which rule is the Cab- rank principle?
A
Rule 21
12
Q
What is the Cab-rank principle?
A
A barrister must accept any brief if:
a. Within skillset and capacity
b. The barrister is not otherwise personally or professionally committed elsewhere
c. fee is acceptable to the barrister
d. not obliged or permitted to refuse under Rules 95, 97, 98, 99
13
Q
Can you inflate the fee of work to avoid taking a brief?
A
No.
Rule 22
Must not set higher than normal to deter a lawyer from briefing you.
14
Q
Can you request a particular lawyer be instructed or briefed as a condition to take a brief?
A
No
Rule 23.
15
Q
Which Rule relates to Direct Access Brief?
A
Rule 24B
16
Q
What must you do if accepting Direct Access Brief?
A
Rule 24
a. Inform the prospective client in writing of:
i. effect of Rules 15 and 17
ii. circumstances may require client to retain instructing solicitor at short notice and possibly in performance of the work.
iii. any real possible disadvantage to client if they do not instruct a solicitor.
iv. relative capacity of B on own vs capacity if B working with instructing solicitor.
v. fair description of B’s advocacy experience.
b. obtain clients signed written acknowledgement they have been informed of the above.
COMPLY WITH PD 13 of 2024.
17
Q
What is PD 13 of 2024? What are the requirements?
A
PD 13 of 2024 - Direct access briefing.
A barrister accepting a DAB must comply with Rule 24B
AND
Prepare a document setting out each of the matters in Rule 24B; and a certification signed by the B that they have informed the client of any complaint may be made to the LSC.
18
Q
If you make a mistake in submitting evidence, case-law or legislation which is contrary to the true position - do you need to inform the court or opponent?
A
Yes
Rule 28.
19
Q
What do you need to disclose to the court for ex parte interlocutory application?
A
See Rule 29
20
Q
Do you need to inform the court of any binding authority, appellate court decision, or legislation if directly in point against your client’s position?
A
Yes Rule 31
But not if the opponent says they are withdrawing their case (Rule 32)
21
Q
If you become aware of binding authority, appellate court decision or legislation after judgment or decision is reserved and still pending, do you need to inform the court?
A
Yes. Rule 33.
22
Q
Which rules relate to Duty to the Client?
A
Rules 37-40
23
Q
Which rules relate to Independence?
A
Rules 40-47
24
Q
Which rules relate to Duty to Opponent?
A
Rules 48-55
25
Which rule relates to 'mere mouthpiece' and independence?
Rule 41
A barrister must not act as the mere mouthpiece of the client.
Exercise independent and forensic judgment after appropriate considerations and wishes of client and instructing solicitor.
26
If you want to expand your firm and a client's brother in law offers to loan you the money or property for the expansion - are you able to accept this generous offer?
No.
Rule 47.
Must not accept money/ property loan from any client, relative, business entity during the course of retainer with that client.
Exception: unless the ordinary business of the client, client's relative or business entity includes lending money.
27
Can you deal directly with another party in the absence of their legal representative?
Not normally.
Rule 51.
Unless:
a. to ask if they are represented
b. legal rep has previously consented
c. B believes the circumstances are so urgent it is required AND it would not be unfair to the party.
28
Which case deals with Duty to the Opponent?
LSC v Mullins
Rules 48 and 49
Barrister must not knowingly make false statement to opponent.
Barrister must take all necessary steps to correct false statement ASAP after becoming aware the statement was false.
29
LSC v Mullins [2006] LPT 012
Cancer case.
Client was victim of MV accident.
Prior to mediation diagnosed with cancer.
B advised should defer mediation, client did not want to adjourn. B did not disclose cancer facts.
Case settled without insurance knowing cancer information. Cancer information relevant to life expectancy, relevant to settlement.
Barrister knowingly misled an insurer and it's lawyers about the life expectancy of his client.
B referred to LSC, ordered to pay $20 and shamed. Costs.
Rules 48 and 49.
Must not knowingly make false statement.
Must correct false statement ASAP after becoming aware the statement is false.
30
Can you deal with an unrepresented party?
Rule 52
Not unless they have indicated a willingness to do so.
31
Can you communicate directly with the court?
Ken Tugrul v Tarrant Financial Consultants
Virgtel v Zabusky
Rule 53
Only in ex parte applications.
OR
a. court has communicated in a way that requires the B to respond.
b. B has consent of the other party to communicate on specific matter.
OR in summary:
1. Trivial matters re:admin and procedure
2. Ex parte
3. Ordered to by the court
4. Exceptional circumstances
32
If you have consent of other party to communicate with the court, are you limited in that communication?
Rule 55
You can only communicate with the court with consent and ONLY about the matters you have consent to communicate about.
33
Ken Tugrul v Tarrant Financial Consultants Pty Ltd (in liquidation) [2013] NSWSC 1971
5th Plaintiff sent material to the court without the consent of the other parties. Defendants 2 & 3 not copied in and did not consent.
[20] Sending an email acknowledging a parties lack of knowledge or lack of consent does not cure any impropriety.
Rules 53, 54, 55
34
Virgtel Ltd & Anor v Zabusky & Ors [2009] QCA92
Relevance to the exam: Duty to Opponent.
Where the applicant sent further submissions to the court AFTER the hearing of the application.
Leave was not sought by Virgtel
Leave was not granted by the court
Court should decline to receive further submissions.
Rule 53.
35
Which rules relate to Efficient administration of Justice?
Rules 56, 57, 58
36
Which rules relate to Responsible use of court process and privilege?
Rules 59-67
37
When cross-examining a witness in sex matters what must a Barrister ensure they do not do?
Rule 61
A. Do not ask a witness a question or pursue a line of questioning which is intended to:
- mislead or confuse the witness
- be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive
B. take into account any vulnerability of the witness in the tone and manner of questioning.
38
What is the rule about alleging criminality/ fraud etc against another?
Bale v Mills
Rule 64
Must not allege any matter of fact alleging criminality, fraud or other serious misconduct etc against any person UNLESS:
- Material supports the claim
- Client wishes the allegation to be made knowing the seriousness of the allegation and possible consequences for the client and case if the allegation is not made out.
39
Bale v Mills [2011] NSWCA 226
Relevance to exam - responsible use of court process.
Rule 64.
Allegation of damning CCTV which did not exist.
Centrelink letter misrepresentation by lawyer regarding weeks for payments.
Lawyer was not cross-examined on Centrelink letter during evidence and this was also breach of rule in Browne v Dunn.
Rule 64
Must not allege any matter of fact alleging criminality, fraud or other serious misconduct etc against any person UNLESS:
- Material supports the claim
- Client wishes the allegation to be made knowing the seriousness of the allegation and possible consequences for the client and case if the allegation is not made out.
40
When cross examining a witness do you have an automatic right to cross on credit?
Rule 66
Must ONLY make suggestion on credit in XXN if you hold the belief that acceptance of the suggestion would diminish the credibility of the evidence of the witness.
41
Which rules relate to Integrity of Evidence?
Rules 68-74
42
A witness comes up to you to seek advice about changing their statement to be more helpful to your client. Can you give them advice?
Rule 68
A Barrister must NOT:
- advise or suggest a witness give false or misleading evidence
- condone anyone else advising or suggesting a witness give false or misleading evidence
- coach a witness by suggesting what answers they should give to questions which might be asked.
43
What can you tell a witness if they ask advice about giving evidence?
Rule 69
No breach to Rule 68 if you tell witness to tell the truth AND/OR you question and test in conference the version to be given by the witness, including drawing their attention to any inconsistencies or other difficulties.
Must not encourage different version to the one the witness believes to be true.
44
What are the four duties to the client?
1. Duty to inform, advise and act on instructions
2. Duty to confidentiality
3. Duty to continue to act
4. Duty of loyalty
45
What rules relate to Media Comment?
Rules 75-77
46
What is the gist of the Media Comment Rules?
Rule 75 - don't publish inaccurate information or information that breaches confidentiality or own opinion.
Rule 76 - can communicate on certain things, basic ID, nature of the issues, orders/judgements made, client intentions re:further steps. Things that have been filed and served.
47
Which rules deal with Delinquent or Guilty clients?
Rules 78-81
48
What do you do if you find out after the hearing but before judgement that a client has lied, falsified or suppressed evidence?
Rule 78.
Tell the client the court should be informed.
Request consent to inform the court and other party.
If client refuses consent = withdraw BUT cannot inform the court of the lie, falsification or suppression.
Perpetual Trustee Co Ltd v Cowley [2010] QSC 65
49
What should you do if your client has confessed guilt to you (criminal proceeding) and maintains a plea of not guilty?
Rule 79
a. continue to act subject to constraints below.
b. do not falsely suggest someone else committed the offence.
c. do not set up an affirmative case inconsistent with the confession.
d. ensure prosecution is put to proof of their case.
e. can argue defence as whole not enough to prove client guilty.
f. can argue that for some reason of law, client is not guilty.
g. may argue for some other reason (not B/C) that client should not be convicted.
h. MUST NOT continue to act if the client insists on giving evidence denying guilt.
50
What do you do if client tells you they are not going to comply with an order of the court?
Rule 80.
Dissuade them.
Don't tell them how to do it.
Don't tell the court or the opposition without consent of the client BUT can tell court/ opposition if the clients conduct constitutes a threat to any person's safety.
51
Which rules relate to Prosecutor duties?
Rules 82-94
52
What is suborning a witness?
To suborn = to bribe or otherwise induce.
MUST NOT suborn a witness. MUST not suggest to a witness that false evidence be given (See Rule 68).
53
What are the two main duties of a prosecutor?
Rule 82.
Duty of fairness and Duty of disclosure.
- Fairly assist court to arrive at the truth.
- Must call all relevant credible witnesses whether it assist prosecution OR defence.
- Disclosure same as 590AB obligations.
54
A prosecutor is making submissions in their closing of a sex case, calling the defendant a 'kerb crawler' and a 'creep', can they do this?
Rule 84.
No. Prosecutor cannot seek to inflame or bias the court against the accused. (Think language or other conduct)
R v Hodges
McCullough v R
55
When is a prosecutor not obliged to disclose all practicable material (including names and means to find witnesses) which could constitute evidence relevant to the guilt or innocence of the accused?
Rule 86.
Only when the prosecutor reasonably believes that full disclosure would seriously threaten the integrity of the administration of justice in those proceedings OR the safety of any person.
56
If the prosecutor does not disclose information/evidence due to safety etc, what should the prosecutor do?
Rule 87.
Must consider:
- should charge be withdrawn
- should lesser charge be preferred
57
When is a prosecutor discharged from calling relevant witness?
Rule 88.
1. Defence consents to not calling witness
2. The evidence of witness has been dealt with by admission
3. The evidence of the witness has already been established by another witness
4. Prosecutor believes testimony of the witness is plainly untruthful or unreliable (high threshold).
NOT every failure to call a material witness will prompt a miscarriage of justice (Finch v R)
58
What Rules relate to Briefs which MUST be returned?
Rules 95-98
59
What Rules relate to Briefs which MAY be returned?
Rule 99-106
60
What are the two main consequences of failing to disclose?
Could form a ground for appeal.
Could result in professional disciplinary action.
61
What must a prosecutor do on sentence?
Rule 93.
1. Correct any error made by opponent on sentence.
2. Provide relevant authorities
3. Assist the court to avoid appellable error
62
Does the court have any power to compel a prosecutor to call a witness?
No power to direct a prosecutor to call a witness.
Trial judge may call a witness to give evidence in exceptional circumstances (see High Court in Richardson v R).
63
When must a barrister refuse to accept/retain a brief?
Rule 95
a. B holds information confidential to any person (not the client) which may be instrumental to client's case.
b. Client interest and Barristers interests in conflict.
c. Retainer to another party.
d. B believes they will be witness in case
e. If appeal then B was witness in first case.
f. B believes their personal/professional conduct will be attacked.
g. B has financial/property interest in the outcome of the case.
h.
i.
j. Brief if to appear in contested or ex parte hearing in front of B's relative, member of household etc.
k. if client does not engage instructing solicitor and B believes this would seriously prejudice B's ability to advance the case and protect the client's interests.
l. B already advised or drawn pleadings for another party to the case.
m. B already discussed case in detail with another party who has adverse interests (even informal discussions).
n. If B to appear before court (within 5 yers) where B was formerly a member or judicial registrar.
64
Can a Barrister receive trust money?
No
LPA Rule 246
65
You are briefed by a solicitor from Dodgy Lawyers and associates, they don't have a good reputation for paying on time. Can you return the brief?
Yes.
Rule 99(d)
66
Can you return a brief for a serious criminal offence just because you don't like men that choke their wives?
Rule 101.
Not unless B believes on reasonable grounds:
a. circumstances are exceptional and compelling
b. enough time for another B to take over properly before the hearing
c. B informs client of this rule and reasons for return and client consents
67
Can you pass your brief to another barrister in your chambers to appear on a mention or write a memo because you are a little busy at the moment.
Rule 106.
Not without the consent of the instructing solicitor.
68
What is devilling?
“Devilling” is the long-established practice among self-employed barristers by which one barrister obtains the assistance of another, usually a more junior, barrister to carry out work to help the first barrister discharge his instructions.
i.e. getting a junior barrister to help you do work on a brief.
69
Is a barrister allowed to seek the assistance of junior counsel on a brief?
Rule 107 - Devilling.
No breach of Rule 16 (sole practitioner rule) if acting under Rule 107 - devilling.
a. B briefed takes full responsibility for the work.
b. worked delivered under name of B briefed.
c. Work not beyond devilling or reading arrangement.
d. B not trying to make profit off other B work etc.
70
Which rules deal with confidentiality and conflicts?
Rules 108-114
71
What is the case that deals with confidentiality?
Tri-Star Petroleum Company & Ors v Australia Pacific LNG Limited & Ors [2017] QSC 136
Interlocutory application for disclosure material which APLNG held in confidence.
Q: When would the court impose a more onerous obligation than "implied undertaking" (i.e. to require an express undertaking)?
Rule 108
A barrister must not disclose (except as compelled by law) or use any confidential information obtained in the course of practice UNLESS:
a. Information later obtained by B from a person who B owes no confidentiality; OR
b. B has consent to use confidential information on either general or specific terms.
c. B discloses the information confidential setting for purpose of obtaining advice in connection with B's legal or ethical obligations.
72
When would the court impose an express undertaking?
Rarely. For the use of specific confidential information?
Tri-Star Petroleum Company & Ors v Australia Pacific LNG Limited & Ors [2017] QSC 136
Rule 108.
73
What do you do if you believe there is a conflict between the interests of the instructing solicitor and the client?
Rule 114
MUST:
a. advise the instructing solicitor of the B's belief
b. if the instructing solicitor does not agree to advise client of B's belief - seek to do so in presence of the instructing solicitor.
74
What are the six cases for ethics and what rules do they relate to?
LSC v Mullins (Rules 48, 49)
Day v Perisher Blue (Rules 70, 71, 72)
Bale v Mills (Rule 64)
Ken Tugrul v Tarrant Financial Consultants (Rules 53, 54, 55)
Virgtel v Zabusky (Rule 53)
Tri-Star Petroleum v ALPNG (Rule 108)
75
Where do you find the rules about Speculative Personal Injury Claims?
LPA
Division 8
ss 345-357
50:50 Rule
[E-(R+D)] x 0.5
76
Which LPA Rule and Bar Rule deal with the practice of Barristers?
LPA s220
Rule 16
77
What are the rules about cost agreements as a barrister?
Legal Profession Act (LPA) Part 3.4
78
What are the consequences of a barrister failing to comply with their cost disclosure obligations?
LPA s316
7. Professional misconduct and disciplinary action.
79
What are the two jurisdictions for which you cannot have conditional costs agreement?
LPA s 323(2)
Criminal Law
Family Law
80
Can conditional payment of costs include an uplift fee?
LPA s324
Yes BUT if if conditional costs relate to litigious matters the uplift fee must not exceed 25% of the legal costs including disbursements otherwise payable s324(4).
81
Is a barrister considered a law practice for the purpose of the Legal Profession Act?
Yes see Schedule 2.
Sole practitioner.
This means that subject to certain exceptions barristers and solicitors must make prescribed cost disclosures.
82
What costs must a barrister disclosed if briefed by an instructing solicitor who is a "law practice"?
Generally none directly to the client.
Disclosure to the firm of the B's legal costs and billing arrangements. Instructing solicitor must disclose the details to the client.
83
What disclosure must be made to client when retained directly?
When accepting briefs from clients or intermediaries (** including in house solicitors) are bound to the very extensive obligations set out in Division 3 LPA.
84
Are there any instances when it is not necessary to provide cosy disclosure when briefed directly by client?
Rare and exceptional circumstances set out in LPA s311.
This rule does NOT override the duties contained when accepting a DAB.
85
What is an undertaking?
A promise to do OR refrain from doing something.
It binds a practitioner and is personal to a practitioner.
86
What types of undertakings are there, and what are the consequences of breaching them?
Undertaking to a court. Breach/failure = contempt of court.
Undertakings to 3rd parties. Can be enforced by civil claim for breach of contract, liability in tort OR misleading and deceptive conduct under statute.
Can result in professional disciplinary consequence.
