Ethics

Question 1

Can a Barrister allege Fraud or Criminality in a proceedings with or without evidence?

What Bar Rules are relevant?

Answer 1

Rule 64 - Unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so - then they should not.

See Bar Rules 65 regarding the aspects of criminality and fraud.

Cases - Clyne, following Ziems - amounted to PC where B was struck off.

Question 2

Does prosecuting counsel have any duties under the Bar Rules?

Authorities?

Answer 2

Bar Rules

Rule 83 - 95 General duties

Authority - Kneebone - Prosecution not calling witness

Question 3

Does the prosecution need to inform defence counsel they do not wish to call a witness?

Answer 3

Kneebone - failed to call witness in case.

Bar Rule 90 - The prosecutor must inform the opponent as soon as practicable of the identity of any witness whom the prosecutor intends not to call on any ground within rule 89 (ii), (iii), (iv) or (v), together with the grounds on which the prosecutor has reached that decision, unless the interests of justice would be harmed if those grounds were revealed to the opponent.

Question 4

Ethics Case - Kneebone

Answer 4

Facts: Kneebone was found guilty of aggravated sexual penetration without consent of his step daughter. The mother of the step daughter was a material witness to the rape. She was not called as a witness by the prosecution despite being both willing and available. The outcome was a new trial as a miscarriage of justice took place in the prosecuting counsel failing to oblige his obligations under the bar rules within r 83, 90.

Held: A prosecutor must seek to arrive at the truth and to oblige the duties he owes to the court. By not calling a material witness whom is suggested as unreliable without testing the unreliability is a miscarriage of justice.

Considered: R v Apostilides (1984) 154 CLR 563; Whitehorn v The Queen (1983) 152 CLR

Notes: Prosecutors owe a duty within bar rules 83 to assist the court to arrive at the truth with impartiality, and to present the whole of the evidence in front of the court. They must, er rule 87 disclose all relevant evidence which could be relevant to guilt or innocence. A Prosecutor must call any witness unless they are plainly unreliable – however this could be tested via the unfavourable witness provisions within the evidence act section 38. The prosecutor must inform the defence counsel per rule 90 if they intend to not call a witness and the ground within rule 89, ie unreliability.

Question 5

Can a Barrister Take Money in advance on Trust?

Answer 5

• Definition of trust money - 129 received for legal costs
• ULAR 15 permits money in advance, encompasses 135 UL
• B must maintain funds in trust account, notify bar - 14 days; fund remain until bill issued, examiner appointed

Question 6

Explain obligations relating to Media Comment of a Barrister

Answer 6

• BR 76 - Yes, but not disclose critical info on trial except for educational or academic purposes
• Paramount duty to court R 3,4; PC/UPC if breached

Question 7

In a statement of claim how should matters be addressed?

What principles underscore this?

Answer 7

Application Act - Schedule 2 Costs in civil claims where no reasonable prospects of success

2 Law practice not to act unless there are reasonable prospects of success

(1) A law practice must not provide legal services on a claim or defence of a claim for damages unless a legal practitioner associate responsible for the provision of the services concerned reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.
(2) A fact is provable only if the associate reasonably believes that the material then available to him or her provides a proper basis for alleging that fact.

Question 8

How should a Barrister perform their work, generally speaking?

Answer 8

Rule 58 - Manner in which the Barrister Performs work

(a) confine the case to identified issues which are genuinely in dispute,
(b) have the case ready to be heard as soon as practicable,
(c) present the identified issues in dispute clearly and succinctly,
(d) limit evidence, including cross-examination, to that which is reasonably necessary,
(e) occupy as short a time in court as is reasonably necessary

Question 9

Can a Barrister act for a client Directly?

Answer 9

BR 22 – yes they can act but must brief client on -

(i) the effect of rules 11 and 13,
(ii) the fact that circumstances may require the client to retain an instructing solicitor
(iii) any other disadvantage..
(iv) capacity in performing work or services to the client compared to solicitor
(v) a fair description of the advocacy experience of the barrister

Question 10

Can a prosecutor or barrister confer with multiple witnesses in trial and suggest answers to questions or coach their answers?

Answer 10

R 69 – not advise misleading statement, or coaching
R 70 – exception, admonition of telling truth
R 71 – must not confer with more than one lay witness

Barrister has duty to not deceive court – r 23/24 knowingly or recklessly.

See cases: Ziems, Di Sureto

Question 11

Can counsel assert any fact at trial?

Answer 11

R60 - (a) is reasonably justified by the material then available to the barrister,

R 64 - must not allege any matter of fact unless - B believes proper basis to do so.

R65 - (a) not allege fraud or misconduct unless proper basis to do so, client has warning

Question 12

Statement of Claim - What should be alleged?

Answer 12

B must ensure all matters are taken on with regards to AA Sch 2, no 2 - Reasonable prospect of success

Based on (a) provable facts and (b) where there is a proper basis for alleging a fact

Question 13

Is there confidentiality obligations for a B in trial or preparing trial?

Answer 13

Bar rules 114-115 contain confidentiality provisions regarding the duty of the barrister not to disclose communications.

s 118 EA - Legal Advice

s 119 of EA - Litigation Privilege -
for the dominant purpose of the client being provided with legal services

s 120 EA - preparing proceedings

Question 14

What is Professional Misconduct?

Answer 14

s 297

More serious than USPC

Involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and conduct of a lawyer , if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.

In Kennedy v Council of Incorporated Law Institute NSW (1939) it was defined as being something which need not be an offence under law but something enough that it amounted to grave impropriety affecting his professional character.

Ziems - professional misconduct was said to have a much more direct bearing on the question of fitness to practice as opposed to personal misconduct. (ran over cyclist - drunk - personal conduct only)

Question 15

What is Unsatisfactory Professional Conduct?

Answer 15

s 296

Falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.

Generally speaking this falls below the level of professional misconduct and could amount to matters relating to diligence and competence - di Suvero v Bar Association NSW (2001)

Case: Glissan (1990) (Legal Profession Disciplinary Tribunal)
Pressure on client to settle should not overbear client’s will Pressure on client to settle constituted unsatisfactory professional conduct (not professional misconduct)

Question 16

Duty to Client - settlement?

Answer 16

R 36
A barrister must inform the client or the instructing solicitor about the alternatives to fully contested adjudication of the case which are reasonably available to the client..

Question 17

Appearing in multiple trials?

Answer 17

Gould - appearing in multiple trials at once - not giving enough notice.

See BR - 108 - 112

Question 18

Chamberlain

Answer 18

Knowledge of error in settlement - ($25k in stead of $250k) Professional Misconduct

Question 19

Hunter

Answer 19

Incompetence of Counsel - failure to adduce and object to inadmissible evidence

Question 20

What are the duties to … other?

Answer 20

• Paramount duty

- Admin of Justice

Question 21

Clyne

Answer 21

Two rules exist - one to govern the conduct of members of the profession and another which are fundamental which outline principles of common decency and fairness.

Question 22

What orders are there with regards to USPC?

Answer 22

Potential Orders: s290(2)

• cautioning
• requiring an apology
• redo the work at no cost or reduced fees
• undertake training, education, counselling or be supervised
• compensation order

Failure to comply with an order may constitute unsatisfactory professional conduct or professional misconduct (s290(3))

Payment of Costs: (s303)

Question 23

What are the duties to Client?

Answer 23

Rule 35 - Duty to Client

A barrister must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person.

Rule 36 - Inform Client/Solicitor of alternatives to litigation

Rule 37 - Inform regarding compromise in case - assist the client to understand the issues in the case and the client’s possible rights and obligations, sufficiently to permit the client to give proper instructions, including instructions in connection with any compromise of the case.

Rule 38 - Advise if client pleads guilty or otherwise to his advantage - Criminal Law advise or authorises other steps towards reducing the issues, time, cost or distress involved in the proceedings.

Duty to Court vs Duty to client
“The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client … It is not that a barrister’s duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. Mason CJ in Giannarelli & Shulkes v Wraith (1988) 165 CLR 543

5.3 Criminal pleas

Rule 39 Criminal pleas

Duty of a barrister representing a person charged with a criminal offence: (a) advise about any plea to the charge, and (b) to make clear client has responsibility and complete freedom of choosing the pleas.

Rule 40 - Fulfilling the duty in rule 39 - advise the client in strong terms that the client is unlikely to escape conviction and that a plea of guilty is generally regarded by the court as a mitigating factor to the extent that the client is viewed by the court as co-operating in the criminal justice process.

Rule 41 - Client denies committing the offence but pleads guilty

(a) must advise the client to the effect that by pleading guilty (b) advise .. matters submitted in mitigation after a plea of guilty must be consistent with admitting guilt in respect of all of the elements of the offence, (c) client is making a free and informed choice to plead guilty, and (d) may otherwise continue to represent the client.

Question 24

What are the duties to Court?

Answer 24

Rule 23 - Overriding duty to the Court

“overriding”: Lord Diplock in Saif Ali v Sydney Mitchell & Co [1980] AC 198

Rule 4 Paramount Duty to Court

“paramount”: Lord Denning MR in the Court of Appeal decision in Saif Ali v Sydney Mitchell & Co [1978] QB 95

Rule 24 - Must not knowingly mislead the court AND

Rule 25 - As soon as he becomes aware to correct the misleading statement.

Rule 26 - Alert Opponent/Court - if any express concession made in the course of a trial in civil proceedings by the opponent …. and is believed to be a mistake.

Interlocutory Relief

Rule 27 - 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) not .. privileged, and (c) support an argument against granting the relief or limiting its terms .. to the client.

Rule 28 A barrister who has knowledge of matters which are within rule 27 (c):
(a) seek instructions.. waiver of .. privilege; and(b) if client does not waive the privilege: (i) inform the client to authorise such disclosure and consequence of not doing so, and(ii) must refuse to appear on the application.

Rule 29 - Inform Court - 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 legislation, and which the barrister has reasonable grounds to believe to be directly in point, against the client’s case.

Rule 30 - Not inform the court of 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.

Rule 31 - RE Rule 29 after judgement
Must inform the court of that matter by: (a) a letter to the court, copied to the opponent, or (b) requesting the court to relist the case for further argument.

Rule 32 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.

Rule 33 - Previous Conviction 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.

Rule 34 - Misapprehension - 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.

Question 25

What are the duties to other Bs?

Answer 25

5.4 Duty to the opponent

Rule 49 - Misleading Statement
Must not make a false or misleading statement to an opponent

Rule 50 - Correct Misleading Statement
Correct any false or misleading statement … as soon as possible after statement

Rule 51 - Does not make misleading Statement
Does not make a false or misleading statement by failing to correct an error on any matter stated to the barrister by the opponent.

Rule 52 - Dealing with a Party
Must not deal directly with a party other than client unless: (a) enquire if represented (b) the legal practitioner representing the party has previously consented, or (c) the barrister believes on reasonable grounds that: (i) the circumstances are urgent, and
(ii) the dealing would not be unfair to the party.

Rule 53 - Deal Direct with unrepresented party - unless they signify willingness

Rule 54 - Not to Communicate with Court

Except for exparte application or a hearing…. communicate in the opponent’s absence with the court .. 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

Rule 55 - Tell Opponent of Communication
A barrister must promptly tell an opponent what passes between the barrister and a court in a communication referred to in rule 54.

Rule 56 - Not to raise issue outside matter specifically - notified to opponent

Question 26

What are the duties to … other?

Answer 26

• Paramount duty
• Admin of Justice

Are most critical

Question 27

Do you need a Practice Certificate to Practice?

Answer 27

The practice of law in New South Wales by unqualified entities is prohibited by section 10 of the Legal Profession Uniform Law (NSW) (Uniform Law). Any advertising or representing that an unqualified entity is entitled to engage in legal practice is prohibited by section 11 of the Uniform Law. Rule 9 of the Legal Profession Uniform General Rules 2015 lists the titles that qualified entities only may use to describe their occupation.

The purpose of the prohibitions in sections 10 and 11 of the Uniform Law is to:

ensure, in the interests of the administration of justice, that legal work is carried out only by those who are qualified to do so; and
protect the public by ensuring that entities carrying out, and representing that they carry out, legal work are qualified to carry out that work.
Unqualified practice exposes the public to the risk of poor legal advice, representation, deception and obtaining professional services from uninsured entities - as well as damaging the reputation of the profession. It is unfair to solicitors who comply with all professional legislative and ethical obligations.

What is a qualified entity?
Each of the following is a qualified entity under the Uniform Law:

a person admitted to the Australian legal profession who holds a current Australian practising certificate;
an incorporated or unincorporated body that is either a sole practitioner, law firm, community legal service or incorporated or unincorporated legal practice;
an “Australian-registered foreign lawyer”. That is, a person authorised to engage in legal practice in a foreign country (Foreign Lawyer) who holds:
a current registration certificate granted under Part 3.4 of the Uniform Law; or
a current registration certificate, or a document acknowledging the registration of a Foreign Lawyer, under a law of a “non-participating jurisdiction” (as defined in the Uniform Law) entitling the Foreign Lawyer to practise foreign law; or
a Foreign Lawyer who is not an Australian-registered foreign lawyer, but only to the extent that his or her legal practice is:
limited to the practice of foreign law; and
carried out in accordance with the applicable requirements of Part 3.4 of the Uniform Law.
Foreign Lawyers

Given the above, a Foreign Lawyer, whether or not he or she is also an Australian-registered foreign lawyer is not qualified to practise Australian law in New South Wales unless and until he or she becomes admitted to the Australian legal profession and holds a current Australian practising certificate.

Please direct any questions regarding the admission of Foreign Lawyers to the Legal Profession Admission Board. You can access registration certificate application forms here.

What are the penalties?
The maximum penalty for engaging in unqualified legal practice is a fine of 250 penalty units [$27,500 on 1 July 2015] or imprisonment for 2 years or both.

The maximum penalty for an entity that holds itself out as entitled to engage in legal practice is 250 penalty units.

Question 28

Costs - UL

Answer 28

Costs
• Disclosure – UL – 174 – 180
• Made asap after accepting instructions – s 174
• Ongoing disclosure – 178, 185
• Client right to independent assessor – 198-199
• B not charge excessive fee – 172, 202, 203, 207
• Cost agreement can be set aside – s 185
• No agreement, scale or order may be made to costs - 178