Rationale of rule cards Flashcards
What is the rationale for the rules regarding media commentary?
The rationale for the rule regarding media comments is to prevent counsel from arguing their case in the court of public opinion, or the media…the rules set out what is and is not permitted (and in what circumstances).
What is the rationale for the rules regarding integrity of evidence re conferences with multiple law witnesses?
The rationale for ethical rules regarding not conferencing multiple lay witnesses at once (r70-71) is to preserve the integrity of the evidence.
The practice of conferencing multiple lay witnesses at once for the purpose of discussing their evidence seriously undermines the trial process and is improper. This is because the practice casts considerable doubt regarding the reliability of the witness’s evidence, it may suggest collusion, and is considered discreditable conduct by the party. The consequence of such a practice is not only a mistrial but may also result in LSC referral, and costs awarded against the party.
Counsel is permitted to have these conferences where there are special circumstances or as permitted by r 71 i.e. about undertakings to the court, admissions, amendments of pleadings or concessions of fact.
Why are their rules regarding guilty or delinquent clients?
Counsel paramount duty is the administration of justice (r 5) and to the court to act with independence in the interests of the administration of justice (r 24). This paramount duty, inter alia, requires counsel to not knowingly or recklessly mislead the court (r 25- r 26).
Counsel must fearlessly promote and protect the interests of the client by all lawful means (r 37) within the limits imposed by the duty to the court.
Where a defendant has confessed guilt, counsel can continue to act however rules have been developed to place restrictions on how the case can be run to ensure counsel does not contravene his paramount duty to the court (see r 78 – r 81).
What is the rationale for the cab rank rule?
The cab rank rule (as set out in r 21 of BCR) requires barristers to accept briefs from solicitors to appear before court in a field which it practices where (1) it is within their skill (2) they have capacity (3) fee offered is acceptable and (4) they are not required to refuse the brief by r 95, r 97, r 98, and r 99.
There are rules designed to protect against barristers circumventing the rule such as (1) r 22 must not set a fee above what one would ordinarily charge to deter a person offering a brief (2) r 23 must not create a condition on which the brief will be accepted (third line forcing), and (3) r 24 must not fetter one’s self as the can rank rule.
The cab rank rule is fundamental to functioning of the Bar, and administration of justice. Without it, (1) access to justice would be at the discretion of individual counsel; (2) the poor clients with unpopular cases would go without legal representation and (3) the rule of law would be eroded.
Without the cab rank rule, the law would become an instrument of oppression and the courts would lose confidence in the community.
What is the rationale behind counsel having an overriding duty to the court to act with the independence in the interest of the administration of justice?
r 5; r 25 - counsel has an overriding duty to the court to act with independence in the interest of the administration of justice.
The rationale for the rule reflects counsels duty to assist the court in doing justice according to law (giannarelli v wraith)
The interest of the client is subjugated to counsel’s paramount duty which may require counsel to act in a manner which possibility disadvantages the client.
What is the rationale for having rules regarding direct briefs?
TBC
What is the rationale for prosecuting counsel having different obligations as distinct from ‘private counsel’?
TBC
What is the rationale for having rules regarding duty to opponent in the context of ex parte communication on any matter of substance?
TBC
What is the rationale for the rule that barrister must be a sole practitioner?
s 220 LPA; r 2; 16 BCR - The rationale for barristers practicing as sole practitioners is to enhance their independence.
What is the rationale for the having barristers as a separate branch of the legal profession?
(1) barristers are legal practitioners who have specialised in advocacy who are briefed by solicitors; and
(2) the separation of barristers of solicitors maintains boundaries regarding roles…for example see r 15-17 BCR regarding work of barristers.
What are the limitation on the duty to the client?
TBC
What is the rationale for the duty to provide authorities or legislation to the court which is directly on point against client’s case?
Duty to the court, inter alia, require counsel to inform the court of any authorities or legislation known to the barrister are directly in point, and against the client’s case (r 31). This rule is consistent with counsel’s paramount duty to the court to act with independence in the administration of justice (r 24). This requires counsel to assist the court to apply the relevant law.
To allow the court to decide a case in favour of your client without knowledge of a contrary authority is tantamount to misleading the court.
What is the rationale for the suggest the duty of frankness is higher in mediations as opposed to in court?
Counsel’s duty of frankness to opponent is not confined to court proceedings but also extends to out of court settings including mediations (r 49; LSC v Mullins). The outcome of LSC v Mullins suggest that a higher duty of frankness is owed in mediations because there is no impartial judicial officer to regulate or find the truth between asserts.
