Independence Flashcards
A barrister has a paramount duty to the court to act with independence in the interests of the administration of justice….there are rules which deal with independence between r 41- r 47…what are they?
r 41-42- barrister must not act as a mere mouth piece of instructing solicitor and must exercise forensic judgement called for during case after appropriate consideration of the clients and IS wishes …barrister will not have breaches duty to client or IS by choosing to, contrary to wishes, exercise forensic judgement called for during the case by confining issues in hearing, presenting case quickly and simply, and informing the court of any persuasive authority against client’s case.
r 43 - barrister must not convey personal opinion on evidence or issues in the case
r 44 - barrister must not deal with the court on an informal personal familiarity
r 45 - A barrister must not give a commission or gift to any person by reason or in connection with introduction of work
r 46 - a barrister must not exercise any undue influence intended to dispose the client to benefit the barrister in excess of fair fees
r 47 - a barrister must not receive any money by way of loan from client
What is rule 41-42 about (hint independence)
r 41-42- barrister must not act as a mere mouth piece of instructing solicitor and must exercise forensic judgement called for during case after appropriate consideration of the clients and IS wishes …barrister will not have breaches duty to client or IS by choosing to, contrary to wishes, exercise forensic judgement called for during the case by confining issues in hearing, presenting case quickly and simply, and informing the court of any persuasive authority against client’s case.
What does rule 43 state? (hint independence)
r 43 - barrister must not convey personal opinion on evidence or issues in the case
What does rule 44 state? (hint independence)
r 44 - barrister must not deal with the court on an informal personal familiarity
What does rule 45 state? (hint independence)
r 45 - A barrister must not give a commission or gift to any person by reason or in connection with introduction of wor
R 25 a barrister has an overriding duty to the court to act with independence in the interest of the administration of justice.
What is a lawyers independence important to the administration of justice?
R 25 a barrister has an overriding duty to the court to act with independence in the interest of the administration of justice.
What is a lawyers independence important to the administration of justice?
The proper administration of justice depends on the exercise by lawyers of an independent judgment and
conducting in management of cases.
Why is independence important to the administration of justice.
Discuss
Independence is important because:-
(1) the judicial process is undermined if lawyers lack objectivity and independence which their professional responsibilities and obligations to the court require of them; and
(2) Further, it is fundamental to the public confidence in the profession that clients are assured in receiving independent and unbiased legal advice.
Independence is reflected in the BCR r 41-47 as well as r 95 and r 99 regarding when briefs must or may be returned.
You are briefed on a civil litigation matter. Your client has instructed you that he wishes to argue every point conceivable (and inconceivable) and “…chase every rabbit down it’s burrow”.
He wants to explore every possible way to win. You have formed the view that he has only two defences which are fairly raised on the evidence.
(Hint: Independence).
R 25 Counsel has a paramount duty to the court to act with independence in the interest of the administration of justice
R 41-41 a barrister must not act as a mere mouthpiece of the client and must exercise forensic judgement called for during the case after consideration is given to the client’s instructions and will not have breached duty to the court to make decisions as per the r 42(a)-(c).
Active role: I would explain to the client that I have a paramount duty to the court which requires me to exercise independence and judgment in the conduct of the matter. I have duty to ensure that court time is not taken up unnecessarily which includes not wasting court time arguing points which are unarguable (see r 56-57).
I would reassure the client that I will fearlessly promote and protect his interest by all lawful means (r 37), however I must do so within the duties to the court.
