Focus deck Flashcards
Rule 13: Things a barrister must not do arising from nature of barrister role:
(agent; corro; witness risk; representative; address for service; commence proceedings; conveyance; administer trust estate; probate; incorporate; returns; funds)
● (a) Act as a person’s general agent or attorney in relation to that person’s business or dealings with others
● (b) Conduct correspondence in the barrister’s name on behalf of any person other than with the opponent for them
● (c) Place themselves at risk of becoming a witness by investigating facts for purposes of appearing as advocate or giving legal advice, otherwise than by:
○ (i) Conferring with client, instructor or prospective witnesses or experts
○ (ii) Examining documents provided by instructor or client or produced to court
○ (iii) Viewing a place/things by arrangement with instructing solicitor or client
○ (iv) Library research
● (d) Act as the person’s only representative in dealings with the 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 pr’ngs / file (other than file in Court) / 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 another person
● (j) Incorporate companies or provide shelf companies for another person
● (k) Prepare of lodge returns for another person unless registered or accredited to do so under the applicable tax legislation
● (l) Hold, invest or disburse any funds for another person
Rule 15 Exceptions to 13
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
17 CAB RANK PRINCIPLE
● Rule 21: Only applies to briefs from solicitors, not direct briefs
● Must accept brief from sollie to appear in a court in field which barrister practises or professes to practise if:
○ (a) Within capacity, skill and experience
○ (b) Available (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)
○ (c) The fees offered are acceptable (Rule 18: can’t artificially hike with intent to defer sollie from offering the brief)
○ (d) Not obliged or permitted to refuse the brief under these rules (rules 101, 103, 104, 105).
22 REQUIREMENTS IF ACCEPTING A DIRECT BRIEF
five + acknowledgment
(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 barrister believes on reasonable grounds may, as a real possibility, be suffered by the client if they do not retain an instructing solicitor
● (iv) The relative capacity of the barrister to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructor to supply them; and
● (v) A fair description of the advocacy experience of the barrister
(b) AND obtain a written signed acknowledgment from client that he/she has been informed of these matters.
Rule 26 - Concessions in civil proceedings
In a CIVIL PROCEEDING, must alert opponent and if necessary inform the court if any express concession made by the opponent about evidence, case law or legislation that is contrary to the true position and that the barrister believes was made by mistake
78 Exceptions
(a) may if requested advise a client about dealings with the media but not in a manner which is calculated to interfere with the proper administration of justice, and
(b) does not breach rule 76 or 77 simply by advising the client about whom there has been published a report relating to the case, and who has sought the barrister’s advice in relation to that report, that the client may take appropriate steps to present the client’s own position for publication.
87 Disclosure of Evidence
Disclose ASAP all materials (including the names of and means of finding prospective witnesses in connection with such material) available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.
89 Calling witnesses
Must call all witnesses:
○ (a) Whose testimony is admissible and necessary for the presentation of all the relevant circumstances; or
○ (b) whose testimony provides reasonable grounds for prosecutor to believe that it could provide admissible evidence relevant to any matter in issue,
○ UNLESS:
○ (i) Opponent consents to P not calling the witness
○ (ii) Only matter which W can give evidence in relation to has been dealt with by an admission of the accused
○ (iii) The only point W can give evidence in relation to has been adequately established by other witnesses
○ (iv) P believes ORG the evidence is plainly untruthful or unreliable
○ (v) P, taking into account their role and ethical duties, believes ORG that the interests of justice would be harmed if the W was called as part of the prosecution case
90 Not calling witnesses
Must tell opponent asap about the identity of any witness they propose not to call, and the reasons they propose not to call them unless they believe ORG interests of justice would be harmed if those reasons were revealed to the opponent
101A Judges etc
(2) A barrister must refuse to accept or retain a brief or instructions to appear before a court if:
(a) the brief is to appear before a court:
(i) of which the barrister is or was formerly a judge, or
(ii) from which appeals lie to a court of which the barrister is or was formerly a judge, and
(b) the appearance would occur less than 5 years after the barrister ceased to be a judge of the court.
● (3) A barrister must refuse to accept or retain a brief or instructions to appear before a tribunal that does not sit in divisions or lists of matters to which its members are assigned if:
(a) the barrister is a full time, part time or sessional member of the tribunal, or
(b) the appearance would occur less than 2 years after the barrister ceased to be a member of the tribunal.
● (4) A barrister must refuse to accept or retain a brief or instructions to appear before a tribunal that sits in divisions or lists of matters to which its members are assigned if:
(a) the brief is to appear in a proceeding in a division or list to which the barrister is assigned as a member of the tribunal, or
(b) the brief is to appear in a proceeding in a division or list to which the barrister was assigned and the appearance would occur less than 2 years after the barrister ceased to be assigned to the division or list.
● (5) The former rules continue to apply to a barrister who was, before 1 July 2015, appointed as a judge, justice, magistrate, coroner, master, prothonotary, registrar or other judicial officer, or a person acting in any of those offices.
● (6) For the purposes of subrule (2)(a)(ii):
(a) an appeal is not to be considered to lie to the Federal Court of Australia from the Supreme Court of a State or Territory, and
(b) the Supreme Court of Victoria (in the exercise of any of its jurisdiction) is taken to be a court to which an appeal from the County Court of Victoria lies, and
● (c) the Supreme Court of New South Wales (in the exercise of any of its jurisdiction) is taken to be a court to which an appeal from the District Court of New South Wales lies.
(7) This rule does not apply in respect of a tribunal if a provision of an Act or a statutory instrument made under an Act prohibits a member or former member of the tribunal from representing a party before the tribunal or prohibits any such representation within a certain period after ceasing to be a member or in certain circumstances
103 - Confidential information
Barrister must refuse brief to advise if the barrister has information which is confidential to any person with different interests from those of the prospective client if (a) the information may, as a real possibility, affect the prospective client’s interests in the matter on which advice is sought or may be detrimental to the interests of the first person, and (b) person entitled to the confidentiality has not consented beforehand to the barrister using the info as they think fit in giving advice
104 Double booking
Barrister must not accept a brief to appear on a day when the barrister is already committed to appear or is reasonably likely to be required to appear on another brief if by appearing on one of the briefs the barrister would not in the normal course of events be able to appear on the other brief or briefs
101 Briefs which must be refused or must be returned
(confidential; conflict’ special retainer; witness; appeal; attack; material interest; costs; arbitration; before relative; direct brief; pleadings; discussed)
● (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,
● (b) the client’s interest in the matter or otherwise is or would be in conflict with the barrister’s own interest or the interest of an associate,
● (c) the barrister has a general or special retainer which gives, and gives only, a right of first refusal of the barrister’s services to another party in the case and the barrister is offered a brief to appear in the case for the other party within the terms of the retainer,
● (d) the barrister has reasonable grounds to believe that the barrister may, as a real possibility, be a witness in the case,
● (e) the brief is to appear on an appeal and the barrister was a witness in the case at first instance,
● (f) the barrister has reasonable grounds to believe that the barrister’s own personal or professional conduct may be attacked in the case,
● (g) the barrister has a material financial or property interest in the outcome of the case, apart from the prospect of a fee,
● (h) The brief is on assessment of costs which include a dispute as to the propriety of the fee paid or payable to the barrister, or is for the recovery from a former client of costs in relation to a case in which the barrister appeared for the client,
● (i) the brief is for a party to an arbitration in connection with the arbitration and the barrister has previously advised or appeared for the arbitrator in connection with the arbitration,
● (j) the brief is to appear in a contested or ex parte hearing before the barrister’s parent, sibling, spouse or child or a member of the barrister’s household, or before a bench of which such a person is a member, unless the hearing is before the High Court of Australia sitting all available judges,
● (k) there are reasonable grounds for the barrister to believe that the failure of the client to retain an instructing solicitor would, as a real possibility, seriously prejudice the barrister’s ability to advance and protect the client’s interests in accordance with the law including these Rules,
● (l) the barrister has already advised or drawn pleadings for another party to matter,
● (m) the barrister has already discussed in any detail (even on an informal basis) with another party with an adverse interest in the matter the facts out of which the matter arises.
107 Serious criminal offence
A barrister must not return under rule 105 (above - reasons may refuse) a brief to defend a charge of a serious criminal offence unless:
● (a) the barrister believes on reasonable grounds that:
○ (i) the circumstances are exceptional and compelling, and
○ (ii) there is enough time for another legal practitioner to take over the case properly before the hearing, or
○ (b) the client has consented after the barrister has clearly informed the client of the circumstances in which the barrister wishes to return the brief and of the terms of this rule.
108 Accepting another brief
A barrister must not return a brief to appear in order to accept another brief to appear unless the instructing solicitor or the client in the first brief has permitted the barrister to do so beforehand, after the barrister has clearly informed the instructing solicitor or the client of the circumstances in which the barrister wishes to return the brief and of the terms of this rule and rule 110 (must return brief in enough time to give another LP time to prepare the case)
