Refusing briefs Flashcards
Conflicts of interest - confidential information
MUST - B has info confidential to any other party in the case.
MUST - B has info confidential to any person with different interests from those of the barrister’s client.
MAY - B has special knowledge of the other party’s case by reason of participation in some other litigation.
Conflict of interest - general
MUST - where barristers has a COI or there is a real possibility of COI.
Conflict of interest - local council
MUST - B is member of local council and affairs of local council likely to arise in any material manner
MUST - B is member of LC and brief is to appear for/against LC
Conflict of interest - director of company or member of committee or council of organisation
MUST - for/against company etc. (appear, advise, settle docs)
Rule does not prevent giving legal advice at board meetings or committee meetings or council meetings, provided that no fee is payable except in capacity as director or committee/council member
Conflicts of interest - member of parliament/local authority
MUST - B has pursued matter by political action and brief is about the same matter (brief)
Conflicts of interest - plaintiff suing insurance co
MUST - B acting for plaintiff if B is director of insurance company
Conflicts of interest - defendant to an originating summons issed by trustees
MUST - B acting for defendant where B holds a brief for the trustees
…notwithstanding that they are adopting an impartial attitude and are not opposed to B holding the second brief.
Conflicts of interest - matter concerning internal affairs of company
MUST - B has investigated the company under statutory provisions at any time within the preceding 6 years.
Conflicts of interest - barristers as witnesses
MUST - B cannot act as witness and counsel in same proceeding.
Applies where B has reasonable grounds to believe B will be witness.
Or if in appellate brief, B was witness below.
If B BRG that B called to give evidence prevent B accepting brief AND is satisfied that allegations can be met without materially diminishing the barrister’s role in proceedings, AND member of Ethics Committee approves, then B may accept.
Conflicts of interest - personal or professional conduct of barrister
MUST - if B has RGB that B’s personal/professional conduct will be attacked in the case.
If B BRG that allegations made to prevent B accepting brief AND is satisfied that allegations can be met without materially diminishing the barrister’s role in proceedings, AND member of Ethics Committee approves, then B may accept.
Conflicts of interest - financial interest
MUST - B has material financial/proprietary interest in outcome of the case.
E.g. dispute about payment of a barrister’s fee. Must not appear or advise on assessment of costs.
E.g. must refuse brief to recover costs from former client.
Not prohibited from defending a cost dispute or pecuniary loss dispute brought against B.
Conflicts of interest - former clients
MUST - if B has advised or drawn pleadings and there is brief to appear AT TRIAL act against them (unless consent of first client).
MUST - if B has discussed facts out of which proceedings arise with a party, must not appear or advise other party (unless consent of first client)
MUST - B who has advised or appeared for an arbitrator in connection with particular arbitration cannot accept a brief for a party to the arbitration.
MAY - if B has some special knowledge by reason of participation in some other litigation.
MAY - B’s past experience of client/essential witness gave rise to opinion, with good reason, that B’s performance in conduct of proceeding would be adversely affected.
E..g B knows client will perjure himself.
Conflicts of interest - general duty to maintain independence
MUST - By reason of connection with client, B would find it difficult to maintain professional independence.
E.g. acting for company where MD is personal relation.
Conflicts of interest - contested or ex parte hearing before…
MUST ...B's parent, sibling, child or spouse Member of B's household A bench of which B is member Before judge whose relationship with B is such as to make such appearance undesirable.
But, client’s interest is paramount concern - should not return brief if it would jeapordise client’s interests.
Also, should not if learns of identity so close to hearing date that it would not give another B enough time.
MUST - if married or intimate/domestic relationship with opposing counsel unless consent.
MAY - real possibility that B will be required to cross exam friend or relation.
Conflicts of interest - formerly a member of court/tribunal
Court
92A
Tribunal
92B
