Ethics

Question 1

LPA Part 3.4 Div 8 (ss345-347)

Answer 1

Speculative personal injury claims, 50:50 rule,

Question 2

Supreme Court PD 13/2024

Answer 2

Direct access briefing -
1. Do all the usual things required of a barrister and a solicitor
2. Refuse the brief unless satisfied that barrister will be able to properly prepare the case and take all appropriate action
3. Comply with r24B
4. Prepare document per r24B including a written acknowledgment by prospective client and file a copy in Court and deliver to Chief Executive of BAQ

Question 3

Bale v Mills [2011] NSWCA 226

Answer 3

Schipp advised Mills to settle damages claim for 175k incl costs. Allegedly advised video evidence ‘damning’, and miscalculated Centrelink preclusion period.

Appeal court overturtned judgment in breach of rule in Browne v Dunn as no CX (opportunity to explain) error in relation to fundamental finding.

[106] Mr Schipp was not in a special position because of his position as a lawyer and an officer of the court. Any witness about or against who the grave submissions or findings of dishonesty are to be made should be confronted with and thus afforded an opportuntiy to explain the dishonesty of hish he or she is to be accused. The result of this case would have been no different had Mr Schipp not been a lawyer.

Question 4

Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731

Answer 4

Principle - improper coaching of witnesses, take proofs of evidence from witnesses separately and encourage witnesses not to discuss their evidence with others, verdict/judgment set aside and new trial ordered

Question 5

Ken Tugrul v Tarrants Financial Consultants Pty Ltd (in liq) [No. 2] 2013 NSWSC 1971

Answer 5

Principle - communication between parties and judge/court staff, consent must be obtained by all parties as to form, but four exceptions

Three basic rules:
1. No communication (written or oral) with judge’s chambers without prior knowledge and consent of all active parties
2. Precise terms of any proposed communication with the judge’s chambers should be provided to the other parties for their consent
3. Other parties must be copied-in on the communication.

Four (and theoretically five) exceptions:
1. Opponent has consented beforehand to the barrister dealing with the court in a specific manner notified to the opponent by the barrister
2. Trivial matters of practice, procedure or administration (e.g. start time/location, robing)
3. Ex parte matters
4. Court has communicated with the barrister in such a way as to require the barrister to respond (e.g. barrister’s communication responds to one from the judge’s chambers or is authorised by an existing order or direction
5. Exceptional circumstances

Question 6

Legal Services Commissioner v Mullins [2006] QLPT 12 (23/11/06)

Answer 6

Principle - duty of honesty and candour applies to mediations, perhaps event to a greater extent given there is no third party arbiter of facts.

At mediation, barristers cannot approach the exercise on the basis that they were entering an ‘honesty free zone’, particularly noting the Barristers Rules 51 and 52.

Question 7

Tri-Star Petroleum Company & Ors v Australia Pacific LNG Pty Limited & Ors [2017] QSC 136

Answer 7

Principle - whether further conditions are required over and above an implied undertaking not to disclose documents exchanged during litigation.

Harmon undertaking (implied undertaking) is a substantive legal obligation not to use documents or information obtained in litigation for other purposes.

In Hearne v Street, the HCA recognised the implied obligation was the mechanism by which the law protected parties and ensured privacy/confidentiality.

In this case, Tri-Star sought production of documents and APLNG sought orders imposing a special protocol to access/use documents produced. The documents contained important market intelligence and pricing information.

Bond J agreed to impose additional protections including: (i) parties signing an express written undertaking, and (ii) certain documents only being given the lawyers. However, it is noted that there is a high threshold before a court will be satisfied that great protection than the implied undertaking is required.

Question 8

Virgtel v Zabusky (No 2) [2009] 2 Qd R 293

Answer 8

Case - $1.5M in costs orders, decision by trial judge not to grant stay upheld on appeal.

At [17], Keane JA issued warning against parties providing submissions after the hearing of the matter, without leave of the court. The fair and efficient administration of justice requires that parties to an application or appeal make their submissions at the hearing. In exceptional cases, the Court may, on request, grant leave for further written submissions to be made.

Question 9

Duties to the Court

Answer 9

Five duties to the Court
1. Duty of candour - honest, don’t mislead court, correct errors, inform court of other important facts, don’t present inadmissible evidence, don’t take unfounded objections
2. Duty of fairness - only make allegations where there is a sufficient foundation, don’t abuse position of advocate in a way which unfairly affects others/court process (e.g. prosecutors must disclose all evidence)
3. Duty of cooperation - conduct proceedings efficiently/expeditiously
4. Duty to maintain dignity of the court - maintain public confidence, assist administration of justice, don’t be arrogant/unpunctual/inappropriate/discourteous
5. Special duty of prosecutors - duties of fairness and disclosure, to call all relevant credible evidence, disclose any statement which assists defence, not to advocate for a higher sentence

Question 10

Duties to the Client

Answer 10

Four duties to the client:
1. Duty to inform, advise and act on instructions
2. Duty of confidentiality
3. Duty to continue to act
4. Duty of loyalty

Question 11

Duties of representation

Answer 11

1. Duty of competence and diligence
2. Cab rank rule

Question 12

Duty to opponent

Answer 12

Role as a warrior not assassin.

Question 13

In what circumstances can a party adduce evidence of what occured in the mediation in a misleading and deceptive conduct claim?

Answer 13

An exception to confidentiality in the Evidence Act 2011 (Cth) applies, and at common law. However court ordered mediation under 53B of the FCA Act provides an absolute protection for evidence of anything said in mediation.

Question 14

What behaviours are appropriate/inappropriate in the litigation and mediation contexts?

Answer 14

Advocating the clients position is appropriate in the court room, and while bullying or aggression might be a feature, it is unlikely to be appropriate. legalese and legal arguments are appropriate in the Court room but not in mediation.

Question 15

Cite the relevant rule from the 2011 Barristers’ Rules that governs the cab rank principle

Answer 15

Rules 21 - 24B

Rule 21: must accept a brief from a solicitor to appear in court if it matches their capacity, skill, and experience, available to take on the work, the fee is acceptable, not otherwise obligated to refuse.

Rule 22: Cannot set an unreasonably high fee for a brief to deter a solicitor from offering it

Rule 23: Must not require specific legal practitioners to be involved as a condition for accepting a brief

Rule 24: Must not enter into arrangements that (a) Prevent them from accepting briefs, except under specific exceptions (b) Restrict competition with other legal practitioners for work, except under those same exceptions.

24A: Barristers are not required to accept direct briefs

24B: Considitions for direct briefs

Question 16

Explain the general principle and rational behind the cab rank rule

Answer 16

1. Facilitating access to justice - competent advocany is a available regardness of the nature of the individual’s case or the personal preference of counsel.
2. Upholding independance of the Bar - by requiring barristers to take on cases impartially, the rule reinforces the independence of barristers as officers of the court who serve the administration of justice rather than personal or popular interests
3. Stengething public confidence in legal system - Ensuring that everyone has access to advocacy enhances public trust in the fairness and equality of the process.
4. Maintaining professional neutrality - separates the barrister’s personal views from their professional obligations, underscoring the barrister’s role as a conduit for the legal system rather than an advocate for their own beliefs.

Question 17

Explain the requirements of Barristers Conduct Rule 24B

Answer 17

Rule 24B: Direct Instructions from Non-Solicitors
If a barrister accepts instructions directly from a non-solicitor, they must:

(a) Inform the prospective client in writing about:
(i) Rules 15 and 17: Explaining their effect on the case.
(ii) Need for a solicitor: The possibility that the client might need to retain a solicitor at short notice during the case.
(iii) Disadvantages: Any potential disadvantages the client may face without a solicitor, as reasonably believed by the barrister.
(iv) Capacity of the barrister: How the barrister’s capacity to perform their work compares to that of a barrister supported by a solicitor.
(v) Advocacy experience: A fair description of the barrister’s advocacy experience.

(b) Obtain written acknowledgment from the client:
The client must sign a written acknowledgment confirming they have been informed of all the above points.

Question 18

Explain the rationale for the barristers duty to the court

Answer 18

The duty “epitomi[s]es the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises and independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case.

Question 19

Identify and explain the disciplinary procedures with reference to the Legal Profession Act 2007

Answer 19

Part 4.4 LPA - A complaint may be made about a barristers conduct to the legal services commissioner. The complaint may be in the approved form, or the Commissioner can accept a complaint made in writing othert than in the approved form.
Complaints made over 3 years after the conduct occured may still be accepted if the conduct may be professional misconduct and if it is in the public interest.
The Commissioner may refer to the complaint to the bar association for investigation.
The respondent may make written submissions to the Commissioner or bar association.
If referred to the bar association, the bar association must produce areport to the commissioner including a recommendation about whether a proceeding berfore a disciplinary both should be started.
The investigators have compulsory powers to require information (s.443). Failing to comply may be professional misconduct.
The Commissioner may commence a discipline application. The application proceedings to a hearing.
If the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may order:
removal from the roll, suspension of practising certificate, imposing conditions of practising certificate, public reprimand, pay a penalty, order compensation, undertake legal education (s456).

Question 20

Cite the rule that governs conflicts of interest and explain the general principle and rationale behind the rule

Answer 20

Rule 95. A barrister must refuse a brief 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

The rule governing conflicts of interest is fundamental to ensuring that barristers act independently, maintain client trust, and uphold the integrity of the justice system. Rule 95 specifically addresses the need to avoid conflicts arising from access to confidential information, thereby protecting the fairness and transparency of legal advocacy. Ruld 95 is consistent with the fudiciary obligation to avoid a conflict of interest.

Question 21

What steps could be taken to manage a potential conflict of interest

Answer 21

1. Conflict check - Before accepting a brief, assess whether you possess any confidential information from another party or whether any prior or concurrent engagements may create a conflict.
2. Disclose the Potential Conflict immediately
3. Seek consent is appropriate
4. Seek guidance from senior counsels or the bar association;
5. Refuse the brief if necessary.

Question 22

Under what circumstances would be appropriate for a barrister to disclose confidential information obtained from their previous client

Answer 22

Rule 108:
1. Disclosure is permissible if the previous client expressly authorizes it.
2. When required by law, such as in compliance with court order;
3. the information is later obtained from a third party who is not bound by the confientiality and the third party does not give the inforation confidentially to the barrister.
4. When the client threatens the safety of another person (rule 81).

Question 23

Explain the general principle and rationale behind the rule that governs the duty to the court

Answer 23

Preserving the Administration of Justice - The justice system relies on truthful and accurate advocacy to function effectively.

Maintaining Public Confidence in the Legal System - The legal profession has a unique role in upholding the rule of law.
By adhering to their duty to the court, barristers demonstrate their commitment to justice, reinforcing public trust in the judiciary and legal system.

Ensuring Fairness in Legal Proceedings - Candor and honesty in presenting evidence and legal arguments ensure all parties have a fair opportunity to be heard. This duty prevents barristers from pursuing tactics that might give their client an unfair advantage at the expense of truth or justice.

Balancing Conflicting Duties - A barrister’s duties to their client, including confidentiality and zealous representation, must be balanced against their overriding duty to the court. This ensures that advocacy does not devolve into deception or manipulation.

Question 24

Describe the responsibilities and obligations in a situation where a client says they are considering fabricating evidence, with reference to the 2011 Barristers’ Rules and the Legal Profession Act 2007

Answer 24

Rule 68 - A barrister must not advise or suggest a witness give false or misleading evidence or condone another person doing so.
Rule 78 - If a barrister learns the client has given false evidence, the barrister must refuse to take any further part unless the client authorises the barrister to inform the court of the lie.

Legal Profession Act:
Section 420: Defines professional misconduct, including engaging in conduct that is dishonest or likely to harm the administration of justice.
Section 427: Defines unsatisfactory professional conduct, including conduct falling short of ethical standards

Question 25

If the client proceeds with their plan to manufacture evidence and discusses the details with a barrister, what actions should the barrister take?

Answer 25

Inform the client about the effect of their decision and refuse to act for the client.

Question 26

Cite the relevant Supreme Court of Queensland Practice Direction that governs direct access briefing

Answer 26

Supreme Court PD 13/2024

Question 27

Explain the general principle and rationale behind the Supreme Court of Queensland Practice Direction that governs direct access briefing

Answer 27

1. Client Protection - Direct access arrangements often involve clients unfamiliar with legal processes. The Practice Direction aims to safeguard clients by ensuring that barristers understand the scope of their role and do not undertake tasks outside their expertise or ability.
2. Ensuring Competence - Barristers must assess whether they can handle the matter without an instructing solicitor.
3. Upholding the Court’s Integrity - ensures that barristers maintain high standards of advocacy and do not compromise their obligations to the court or their client due to the absence of an instructing solicitor.

Question 28

Cite the 2011 Barristers’ Rule that governs ex‐parte proceeding and explain the rationale behind the rule

Answer 28

Rule 29 - Barrister appearing ex parte must inform the court of all non-privileged matters which support an arguement agaisnt granting the relief.

Rule 30 - Must seek the clients instructions to waive privilege about matters matters which support an arguement agaisnt granting the relief.

Duty to Court - In ex parte proceedings, the court is at a disadvantage because it only hears one side of the argument. Rules 29 and 30 ensure that the court is not misled or deprived of critical information that may affect the decision. By disclosing all relevant non-privileged matters (Rule 29) and seeking client instructions to waive privilege on adverse matters (Rule 30), the barrister ensures the court can deliver a fair and just outcome.

Integrity - Presenting a one-sided argument without acknowledging adverse facts could undermine the trust placed in the legal profession and in the judicial process.

Fairness - Rule 29 ensures barristers do not exploit the unilateral nature of ex parte proceedings to obtain relief by omitting unfavorable information. Rule 30 requires barristers to engage with their clients thoughtfully and seek instructions regarding privileged matters, showcasing both skill and diligence in balancing the client’s interests with broader ethical duties.

Question 29

Cite the section of the Legal Profession Act 2007 that governs legal costs

Answer 29

Part 3.4 LPA

Question 30

What is the rule in the 2011 Barristers’ Rules concerning a barrister’s duty to disclose persuasive authorities and precedents to the court

Answer 30

Rule 31

Question 31

Cite the 2011 Barristers’ Rule that governs cross‐examination on credit

Answer 31

66. A barrister must not make a suggestion in cross-examination on credit unless the barrister believes on reasonable grounds that acceptance of the suggestion would diminish the credibility of the evidence of the witness.

Question 32

What is the rule in the 2011 Barristers’ Rules concerning settling a defence and the proper basis for alleging matters?

Answer 32

63. A barrister must not allege any matter of fact in:
    (a) any court document settled by the barrister;
    (b) any submission during any hearing;
    (c) the course of an opening address; or
    (d) the course of a closing address or submission on the evidence; unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so

Question 33

Cite the 2011 Barristers’ Rule that governs media commentary on the quality of evidence

Answer 33

Rule 75: A barrister must not publish or promote any material about a current or potential case they are involved in if it contains information they know is false, is confidential, Gives their opinion on the case or any issues in it, unless it’s part of a genuine educational or legal discussion or breaches rule 12 (dimish public confidence in legal system).

Rule 76: Barrister may provide answers to unsolicited questions so long as answers are limited to the idenitfy of the parties, nature ofissues, orders or judgment given. May provide copes of pleadings and documents unless prohibited by legislation or practice.

Question 34

What is the rule in the 2011 Barristers’ Rules concerning communication with the court?

Answer 34

53 - A barrister must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:
(a) the court has first communicated with the barrister in such a way as to require the barrister to respond to the court; or
(b) the opponent has consented beforehand to the barrister dealing with the court in a specific manner notified to the opponent by the barrister.
54. A barrister must promptly tell an opponent what passes between the barrister and a court in a communication referred to in Rule 53.