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1
The administration of justice in New South Wales is best served by reserving the
practice of law to officers of the Supreme Court who owe their paramount duty to
the administration of justice.
2
As legal practitioners, barristers must maintain high standards of professional
conduct.
3
The role of barristers as specialist advocates in the administration of justice
requires them to act honestly, fairly, skilfully, diligently and bravely.
4
Barristers owe duties to the courts, to other bodies and persons before whom they
appear, to their clients, and to their barrister and solicitor colleagues.
5
Barristers should exercise their forensic judgements and give their advice
independently and for the proper administration of justice, notwithstanding any
contrary desires of their clients.
6
The provision of advocates for those who need legal representation is better
secured if there is a Bar whose members:
(a) must accept briefs to appear regardless of their personal prejudices;
(b) must not refuse briefs to appear except on proper professional grounds;
and
(c) compete as specialist advocates with each other and with other legal
practitioners as widely and as often as practicable.
7
Barristers should be free to choose how they lawfully practise as barristers except
only in those cases where the unchecked exercise of that freedom would threaten
harm to the greater public interest that barristers' conduct be honourable, diligent,
especially skilled, disinterested and competitive and that access to barristers'
services be enhanced.
8
These Rules are made as barristers rules under the Act and pursuant to Section
57A of the Act. They may be cited as the New South Wales Barristers’ Rules. By
approval of the Attorney General under section 57K of the Act, they will
commence on 1 July 1994. Rules 15, 18, 20, 24A, 25, 26, 28, 32, 33, 35, 36, 38,
41, 43, 44, 46, 48, 50, 52, 59, 60, 62, 65, 66, 66A, 66B, 69, 71, 81, 87, 88, 91, 99
and 100 as amended or inserted by the resolutions of the Bar Council of 11 May
1995, the deletion of Rule 45 by resolution of the Bar Council of 11 May 1995,
the amendments to Rules 74, 75, 76 and 77 as amended by resolution of the Bar
Council of 17 April 1997, and the insertion of Rule 114 by resolution of the Bar
Council of 29 May 1997 and the amendment of Rule 80 by resolution of the Bar
Council on 26 June 1997 commence one month after the date they are published
in the Gazette. The amendments to these Rules approved by Bar Council on 22
October 1998, 19 November 1998 and 8 December 1999, gazetted on 21 January
2000, are to take effect on 6 March 2000. [Amended Gazette No. 66 of 20 June 1997 p
4566, Gazette No.88, 8 August 1997, p.6112, Gazette No.7 of 21 January 2000, p.348 ]
9
These Rules are not, and should not be read as if they were, a complete or detailed
code of conduct for barristers. Other standards for, requirements of and sanctions
on the conduct of barristers are found in the inherent disciplinary jurisdiction of
the Supreme Court1, the Act2 (and in particular provisions relating to
unsatisfactory professional conduct and professional misconduct)3 and in the
general law (including the law relating to contempt of court)4. Certain forms of
conduct are expressly permitted under the Act5.
10
These Rules should be read and applied so as most effectively to attain the objects
and uphold the values expressed in their Preamble.
11
General provisions of these Rules should not be read or applied in a limited way
by reason of any particular or illustrative provisions.
12
Headings in these Rules shall be read as part of these Rules, but shall not be used
so as to read or apply any of the Rules in a more limited way than would have
been so if the headings were not part of the Rules.
13
These Rules are not to be read by reference to any former rules made by the Bar
Association before 1994, whether or not the substance of any such rule is reflected
in any of these Rules.
14
Expressions used in these Rules which are also used in the Act have the same
meanings as they are used in the Act, unless the context requires otherwise.
16
A barrister must seek to advance and protect the client's interests to the best of the
barrister's skill and diligence, uninfluenced by the barrister's personal view of the
client or the client's activities, and notwithstanding any threatened unpopularity or
criticism of the barrister or any other person, and always in accordance with the
law including these Rules.
17
A barrister must seek to assist the client to understand the issues in the case and
the client's possible rights and obligations, if the barrister is instructed to give
advice on any such matter, sufficiently to permit the client to give proper
instructions, particularly in connexion with any compromise of the case.
17a
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, unless the barrister believes on reasonable grounds that the client already
has such an understanding of those alternatives as to permit the client to make
decisions about the client’s best interests in relation to the litigation. [
17b
A barrister must (unless circumstances warrant otherwise in the barrister’s
considered opinion) advise a client who is charged with a criminal offence about
any law, procedure or practice which in substance holds out the prospect of some
advantage (including diminution of penalty), if the client pleads guilty or
authorises other steps towards reducing the issues, time, cost or distress involved
in the proceedings.
18
A barrister must not act as the mere mouthpiece of the client or of the instructing
solicitor and must exercise the forensic judgements called for during the case
independently, after appropriate consideration of the client's and the instructing
solicitor's desires where practicable.6
19
A barrister will not have breached the barrister's duty to the client, and will not
have failed to give reasonable consideration to the client's or the instructing
solicitor's desires, simply by choosing, contrary to those desires, to exercise the
forensic judgements called for during the case so as to:
(a) confine any hearing to those issues which the barrister believes to be the
real issues;
(b) present the client's case as quickly and simply as may be consistent with its
robust advancement; or
(c) inform the court of any persuasive authority against the client's case.
20
A barrister must not make submissions or express views to a court on any material
evidence or material issue in the case in terms which convey or appear to convey
the barrister's personal opinion on the merits of that evidence or issue.
21
A barrister must not knowingly make a misleading statement to a court on any
matter.
22
A barrister must take all necessary steps to correct any misleading statement made
by the barrister to a court as soon as possible after the barrister becomes aware that
the statement was misleading.
23
A barrister must take all necessary steps to correct any express concession made to
the court in civil proceedings by the opponent in relation to any material fact,
case-law or legislation:
(a) only if the barrister knows or believes on reasonable grounds that it was
contrary to what should be regarded as the true facts or the correct state of
the law;
(b) only if the barrister believes the concession was an error; and
(c) not (in the case of a concession of fact) if the client’s instructions to the
barrister support the concession.
24
A barrister seeking any interlocutory relief in an ex parte application must disclose
to the court all matters which:
(a) are within the barrister's knowledge;
(b) are not protected by legal professional privilege; and
(c) the barrister has reasonable grounds to believe would support an argument
against granting the relief or limiting its terms adversely to the client.
24a
A barrister who has knowledge of matters which are within Rule 24(c):
(a) must seek instructions for the waiver of legal professional privilege if the
matters are protected by that privilege, so as to permit the barrister to
disclose those matters under Rule 24; and
(b) if the client does not waive the privilege as sought by the barrister:
(i) must inform the client of the client’s responsibility to authorize
such disclosure and the possible consequences of not doing so; and
(ii) must inform the court that the barrister cannot assure the court that
all matters which should be disclosed have been disclosed to the
court.
25
A barrister must, at the appropriate time in the hearing of the case and if the court
has not yet been informed of that matter, inform the court of:
(a) any binding authority;
(b) any authority decided by the Full Court of the Federal Court of Australia,
a Court of Appeal of a Supreme Court or a Full Court of a Supreme Court;
(c) any authority on the same or materially similar legislation as that in
question in the case, including any authority decided at first instance in the
Federal Court or a Supreme Court, which has not been disapproved; or
(d) any applicable legislation;
which the barrister has reasonable grounds to believe to be directly in point,
against the client's case.
tie to 23?
26
A barrister need not inform the court of matters within Rule 25 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.
27
A barrister who becomes aware of a matter within Rule 25 after judgement or
decision has been reserved and while it remains pending, whether the authority or
legislation came into existence before or after argument, must inform the court of
that matter by:
(a) a letter to the court, copied to the opponent, and limited to the relevant
reference unless the opponent has consented beforehand to further material
in the letter; or
(b) requesting the court to relist the case for further argument on a convenient
date, after first notifying the opponent of the intended request and
consulting the opponent as to the convenient date for further argument.
28
A barrister need not inform the court of any matter otherwise within Rule 25
which would have rendered admissible any evidence tendered by the prosecution
which the court has ruled inadmissible without calling on the defence.
29
A barrister will not have made a misleading statement to a court simply by failing
to disclose facts known to the barrister concerning the client's character or past,
when the barrister makes other statements concerning those matters to the court,
and those statements are not themselves misleading.
30
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.xOQ
31
A barrister must inform the court in civil proceedings of any 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.
32
A barrister whose client informs the barrister, during a hearing or after judgment
or decision is reserved and while it remains pending, that the client has lied to the
court or has procured another person to lie to the court or has falsified or procured
another person to falsify in any way a document which has been tendered:
(a) must refuse to take any further part in the case unless the client authorises
the barrister to inform the court of the lie or falsification;
(b) must promptly inform the court of the lie or falsification upon the client
authorising the barrister to do so; but
(c) must not otherwise inform the court of the lie or falsification.o
33
A barrister briefed to appear in criminal proceedings whose client confesses guilt
to the barrister but maintains a plea of not guilty:
(a) may return the brief, if there is enough time for another legal practitioner
to take over the case properly before the hearing, and the client does not
insist on the barrister continuing to appear for the client;
(b) in cases where the barrister keeps the brief for the client:
(i) must not falsely suggest that some other person committed the
offence charged;
(ii) must not set up an affirmative case inconsistent with the
confession; but
(iii) may argue that the evidence as a whole does not prove that the
client is guilty of the offence charged;
(iv) may argue that for some reason of law the client is not guilty of the
offence charged; or
(v) may argue that for any other reason not prohibited by (i) and (ii) the
client should not be convicted of the offence charged.W±ÐY±
34
A barrister whose client informs the barrister that the client intends to disobey a
court's order must:
(a) advise the client against that course and warn the client of its dangers;
(b) not advise the client how to carry out or conceal that course; but
(c) not inform the court or the opponent of the client's intention unless:
(i) the client has authorised the barrister to do so beforehand; or
(ii) the barrister believes on reasonable grounds that the client's
conduct constitutes a threat to any person's safety.=priv
35
A barrister must, when exercising the forensic judgments called for throughout the
case, take care to ensure that decisions by the barrister or on the barrister's advice
to invoke the coercive powers of a court or to make allegations or suggestions
under privilege against any person:
(a) are reasonably justified by the material already available to the barrister;
(b) are appropriate for the robust advancement of the client's case on its
merits;
(c) are not made principally in order to harass or embarrass the person;
and
(d) are not made principally in order to gain some collateral advantage for the
client or the barrister or the instructing solicitor out of court.V
36
A barrister must not allege any matter of fact in:
(a) any court document settled by the barrister;
(b) any submission during any hearing;
(c) the course of an opening address; or
(d) the course of a closing address or submission on the evidence;
unless the barrister believes on reasonable grounds that the factual material
already available provides a proper basis to do so.ïý
37
A barrister must not allege any matter of fact amounting to criminality, fraud or
other serious misconduct against any person unless the barrister believes on
reasonable grounds that:
(a) available material by which the allegation could be supported provides a
proper basis for it; and
(b) the client wishes the allegation to be made, after having been advised of
the seriousness of the allegation and of the possible consequences for the
client and the case if it is not made out.
tied to 35
38
A barrister must not make a suggestion in cross-examination on credit unless the
barrister believes on reasonable grounds that acceptance of the suggestion would
diminish the witness’s credibility.
cf. Clyne at 201
39
A barrister may regard the opinion of the instructing solicitor that material which
is available to the solicitor is credible, being material which appears to the
barrister from its nature to support an allegation to which Rules 36 and 37 apply,
as a reasonable ground for holding the belief required by those rules (except in the
case of a closing address or submission on the evidence).
40
A barrister who has instructions which justify submissions for the client in
mitigation of the client's criminality and which involve allegations of serious misconduct against any other person not able to answer the allegations in the case
must seek to avoid disclosing the other person's identity directly or indirectly
unless the barrister believes on reasonable grounds that such disclosure is
necessary for the robust defence of the client.
41
A barrister must seek to ensure that:
(a) the barrister does work which the barrister is briefed to do, whether
expressly or impliedly, specifically or generally, in relation to steps to be
taken by or on behalf of the client, in sufficient time to enable compliance
with orders, directions, rules or practice notes of the court; and
(b) warning is given to the instructing solicitor or the client, and to the
opponent, as soon as the barrister has reasonable grounds to believe that
the barrister may not complete any such work on time.
42
A barrister must seek to ensure that work which the barrister is briefed to do in
relation to a case is done so as to:
(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 to advance and protect the client’s interests which are at stake in
the case; and
(e) occupy as short a time in court as is reasonably necessary to advance and
protect the client’s interests which are at stake in the case.
cf. Ashmore v Lloyd’s [1992] 1 W.L.R. 446
also UCPR
42A
A barrister must take steps to inform the opponent as soon as possible after the
barrister has reasonable grounds to believe that there will be an application on
behalf of the client to adjourn any hearing, of that fact and the grounds of the
application, and must try with the opponent’s consent to inform the court of that
application promptly.
43
A barrister must not suggest or condone another person suggesting in any way to
any prospective witness (including a party of the client) the content of any
particular evidence which the witness should give at any stage in the proceedings.
44
A barrister will not have breached Rule 43 by expressing a general admonition to
tell the truth, or by questioning and testing in conference the version of evidence
to be given by a prospective witness, including drawing the witness's attention to
inconsistencies or other difficulties with the evidence, but must not coach or encourage the witness to give evidence different from the evidence which the
witness believes to be true.
46
A barrister must not confer with, or condone another legal practitioner conferring
with, more than one lay witness (including a party or client) at the same time,
about any issue:
(a) as to which there are reasonable grounds for the barrister to believe it may
be contentious at a hearing;
(b) which could be affected by, or could affect, evidence to be given by any of
those witnesses;
unless the barrister believes on reasonable grounds that special circumstances
require such a conference.
47
A barrister will not have breached Rule 46 by conferring with, or condoning
another legal practitioner conferring with, more than one client about undertakings
to a court, admissions or concessions of fact, amendments of pleadings or
compromise.
48
A barrister must not confer with any witness (including a party or client) called by
the barrister on any matter related to the proceedings while that witness remains
under cross-examination, unless:
(a) the cross-examiner has consented beforehand to the barrister doing so; or
(b) the barrister:
(i) believes on reasonable grounds that special circumstances
(including the need for instructions on a proposed compromise)
require such a conference;
(ii) has, if possible, informed the cross-examiner beforehand of the
barrister's intention to do so; and
(iii) otherwise does inform the cross-examiner as soon as possible of
the barrister having done so.
although the cross-examiner need not be required to give permission?
49
A barrister must not take any step to prevent or discourage prospective witnesses
or witnesses from conferring with the opponent or being interviewed by or on
behalf of any other person involved in the proceedings.
50
A barrister will not have breached Rule 49 simply by telling a prospective witness
or a witness that the witness need not agree to confer or to be interviewed.
51
A barrister must not knowingly make a false statement to the opponent in relation
to the case (including its compromise).
52
A barrister must take all necessary steps to correct any false statement
unknowingly made by the barrister to the opponent as soon as possible after the
barrister becomes aware that the statement was false.
53
A barrister will not have made a false statement to the opponent simply by failing
to correct an error on any matter stated to the barrister by the opponent.
54
A barrister must not deal directly with the opponent's client unless:
(a) the opponent has previously consented;
(b) the barrister believes on reasonable grounds that:
(i) the circumstances are so urgent as to require the barrister to do so;
and
(ii) the dealing would not be unfair to the opponent's client; or
(c) the substance of the dealing is solely to enquire whether the person is
represented and, if so, by whom.
55
A barrister must not confer with or deal directly with the party opposed to the
client unless:
(a) the party, not being indemnified by an insurance company which is
actively engaged in contesting the proceedings, is unrepresented and has
signified willingness to that course; or
(b) the party, being indemnified by an insurance company which is actively
engaged in contesting the proceedings, is otherwise unrepresented and the
barrister:
(i) has no reasonable grounds to believe that any statements made by
the party to the barrister may harm the party's interests under the
insurance policy; or
(ii) has reasonable grounds for the belief referred to in (i) but has
clearly informed the party beforehand of that possibility; or
(c) the party, being indemnified by an insurance company which is actively
engaged in contesting the proceedings, is personally represented but not in
the case and the barrister:
(i) has notified the party's representative of the barrister's intention to
do so; and
(ii) has allowed enough time for the party to be advised by the party's
representative.
56
A barrister must not, outside an ex parte application or a hearing of which the
opponent has had proper notice, communicate in the opponent's absence with the
court concerning any matter of substance in connexion with current proceedings
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 beforehand to the barrister dealing with the
court in a specific manner notified to the opponent by the barrister.
'matter of substance'
57
A barrister must promptly tell the opponent what passes between the barrister and
a court in a communication referred to in Rule 56.
58
A barrister must not raise any matter with a court in connexion with current
proceedings on any occasion to which the opponent has consented under Rule
56(b), other than the matters specifically notified by the barrister to the opponent
when seeking the opponent's consent.
somewhat repetitious?
59
A barrister must not publish, or take steps towards the publication of, any material concerning current proceedings in which the barrister is appearing or has appeared, unless:
(a)the barrister is merely supplying, with the consent of the instructing
solicitor or the client, as the case may be:
(i) copies of pleadings or court process in their current form, which have been filed, and which have been served in accordance with the court’s requirements;
(ii) copies of affidavits or witness statements, which have been read, tendered or verified in open court, clearly marked so as to show any parts which have not been read, tendered or verified or which have been disallowed on objection;
(iii) copies of the transcript of evidence given in open court, if permitted by copyright and clearly marked so as to show any corrections agreed by the other parties or directed by the court;
(iv) copies of exhibits admitted in open court and without restriction on access; or
(v) copies of written submissions, which have been given to the court, and which have been served on all other parties; or


(b) the barrister, with the consent of the instructing solicitor or the client, as the case may be, is answering unsolicited questions from journalists concerning proceedings in which there is no possibility of a jury ever hearing the case or any re-trial and:
(i) the answers are limited to information as to the identity of the parties or of any witness already called, the nature of the issues in the case and the nature of the orders made or judgment given including any reasons given by the court;
(ii) the answers are accurate and uncoloured by comment or unnecessary description; and
(iii) the answers do not appear to express the barrister’s own opinions on any matters relevant to the case
cf. Ex parte Bread Manufacturers, Re Truth and Sportsman (1937) 37 S.R. (N.S.W.) 242 per Jordan CJ at 248-50, and Attorney-General v. Times Newspapers [1974] A.C. 273 per Lord Diplock at 313
60
barrister will not have breached Rule 59 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.
61
A barrister must not in the presence of any of the parties or solicitors deal with a
court, or deal with any legal practitioner appearing before the barrister when the
barrister is a referee, arbitrator or mediator, on terms of informal personal
familiarity which may reasonably give the appearance that the barrister has special
favour with the court or towards the legal practitioner.
62
A prosecutor must fairly assist the court to arrive at the truth, must seek
impartially to have the whole of the relevant evidence placed intelligibly before
the court, and must seek to assist the court with adequate submissions of law to
enable the law properly to be applied to the facts.
63
A prosecutor must not press the prosecution's case for a conviction beyond a full
and firm presentation of that case.
64
A prosecutor must not, by language or other conduct, seek to inflame or bias the
court against the accused.
65
A prosecutor must not argue any proposition of fact or law which the prosecutor
does not believe on reasonable grounds to be capable of contributing to a finding
of guilt and also to carry weight.
Anderson (1991) 53 A Crim R 421 per Gleeson CJ at 449, 453
66
A prosecutor must disclose to the opponent as soon as practicable all material
(including the names of an means of finding prospective witnesses in connexion
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, unless:
(a) such disclosure, or full disclosure, would seriously threaten the integrity of
the administration of justice in those proceedings or the safety of any
person; and
(b) the prosecutor believes on reasonable grounds that such a threat could not
be avoided by confining such disclosure, or full disclosure, to the opponent
being a legal practitioner, on appropriate conditions which may include an
undertaking by the opponent not to disclose certain material to the
opponent’s client or any other person.
66A
A prosecutor who has decided not to disclose material to the opponent under Rule
66 must consider whether:
(a) the defence of the accused could suffer by reason of such non-disclosure;
(b) the charge against the accused to which such material is relevant should be
withdrawn; and
(c) the accused should be faced only with a lesser charge to which such
material would not be so relevant.
66B
A prosecutor must call as part of the prosecution’s case all witnesses:
(a) whose testimony is admissible and necessary for the presentation of the
whole picture;
(b) whose testimony provides reasonable grounds for the prosecutor to believe
that it could provide admissible evidence relevant to any matter in issue;
(c) whose testimony or statements were used in the course of any committal
proceedings;
(d) from whom statements have been obtained in the preparation or conduct of
the prosecution’s case; unless:
(e) the opponent consents to the prosecutor not calling a particular witness;
(f) the only matter with respect to which the particular witness can give
admissible evidence has been dealt with by an admission on behalf of the
accused; or
(g) the prosecutor believes on reasonable grounds that the administration of
justice in the case would be harmed by calling a particular witness or
particular witnesses to establish a particular point already adequately
established by another witness or other witnesses; provided that:
(h) the prosecutor is not obliged to call evidence from a particular witness,
who would otherwise fall within (a)-(d), if the prosecutor believes on
reasonable grounds that the testimony of that witness is plainly untruthful
or is plainly unreliable by reason of the witness being in the camp of the
accused; and
(i) 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 (f), (g) and (h), together with the grounds on which the
prosecutor has reached that decision.
Ground (h) is 'by reason of being the accused's camp' only
67
A prosecutor who has reasonable grounds to believe that certain material available
to the prosecution may have been unlawfully obtained must promptly:
(a) inform the opponent if the prosecutor intends to use the material; and
(b) make available to the opponent a copy of the material if it is in
documentary form.
68
A prosecutor must not confer with or interview any of the accused except in the
presence of the accused's representative.
69
A prosecutor must not inform the court or the opponent that the prosecution has
evidence supporting an aspect of its case unless the prosecutor believes on
reasonable grounds that such evidence will be available from material already
available to the prosecutor.
but it may not be admissible?
70
A prosecutor who has informed the court of matters within Rule 69, and who has
later learnt that such evidence will not be available, must immediately inform the
opponent of that fact and must inform the court of it when next the case is before
the court.
71
A prosecutor must not seek to persuade the court to impose a vindictive sentence
or a sentence of a particular magnitude, but:
(a) must correct any error made by the opponent in address on sentence;
(b) must inform the court of any relevant authority or legislation bearing on
the appropriate sentence;
(c) must assist the court to avoid appealable error on the issue of sentence;
(d) may submit that a custodial or non-custodial sentence is appropriate; and
(e) may inform the court of an appropriate range of severity of penalty,
including a period of imprisonment, by reference to relevant appellate
authority.
72
A barrister who appears as counsel assisting an inquisitorial body such as the
Independent Commission Against Corruption, the National Crime Authority, the
Australian Securities Commission, a Royal Commission or other statutory tribunal
or body having investigative powers must act in accordance with Rules 62, 64 and
65 as if the body were the court referred to in those Rules and any person whose
conduct is in question before the body were the accused referred to in Rule 64.
73
A barrister must give the barrister's truthful opinion on any matter submitted to the
barrister for advice or opinion
74
A barrister must confine the barrister's professional work to:
(a) appearing as an advocate;
(b) preparing to appear as an advocate;
(c) negotiating for the client with the opponent to compromise the case;
(d) representing the client in a mediation;
(e) giving legal advice;
(f) advising on documents to be used in the client's affairs;
(g) acting as a referee, arbitrator or mediator; and
(h) carrying out work properly incidental to the kinds of work referred to in
(a)-(g).
settling pleadings would appear ok
75
A barrister must not, in the barrister's professional work:
(a) commence proceedings or file process in any court on behalf of the client
in the barrister’s name;
(b) serve any process of any court;
(c) make any demand, by letter or otherwise, on behalf of the client in the
barrister’s name, except for the purposes of work under Rule 74(c) and (d);
and
(d) conduct correspondence on behalf of the client in the barrister’s name or
deal on behalf of the client with any other person, unless:
(i) the correspondence is to seek information from a potential witness;
or
(ii) the dealing is a conference with a potential witness; or
(iii) it is for the purposes of work under Rule 74.
76
A barrister must take reasonable steps to avoid the possibility of the barrister
becoming a witness in the case as a result of any correspondence conducted by the
barrister or of any dealing by the barrister with persons other than the client.
A barrister must not, in the barrister’s professional work, hold, invest or disburse
any funds for any other person. 15
77
A barrister must not, in the barrister’s professional work, hold, invest or disburse
any funds for any other person.
LPA
78
A barrister who is asked by any person to do work or engage in conduct which is
not barristers' work, or which appears likely to require work to be done which is
not barristers' work, must promptly inform that person:
(a) of the effect of Rules 74 and 75 as they relevantly apply in the
circumstances; and
(b) that, if it be the case, solicitors are capable of providing those services to
that person.
note negligence case in feb exams
79
A barrister who provides information under Rule 78 to a person must not inform
the person that the barrister will perform barristers' work for that person on
condition that a particular solicitor briefs the barrister to do so.
tied to 84
80
A barrister who proposes to accept instructions directly from a person who is not a
solicitor or a professional acting as such must inform the prospective client in
writing of:
(a) the effect of Rules 74 and 75;
(b) the fact that circumstances may require the client to retain an instructing
solicitor at short notice, and possibly during the case;
(c) any other disadvantage which the barrister believes on reasonable grounds
may, as a real possibility, be suffered by the client if the client does not
retain an instructing solicitor; and
(d) the relative capacity of the barrister in performing barristers' work to
supply the requested facilities or services to the client compared to the
capacity of the barrister together with an instructing solicitor to supply
them; and
(e) a fair description of the advocacy experience of the barrister.
81
A barrister must be a sole practitioner, and must not practise:
(a) in partnership with any person;
(b) as the employer of any legal practitioner who acts as a legal practitioner in
the course of that employment; or
(c) as the employee of any person.
82
A barrister must not make or have any arrangement with any person in connexion
with any aspect of the barrister's practice which imposes any obligation on the
barrister of such a kind as may prevent the barrister from:
(a) accepting any brief to appear for reasons other than those provided by the
exceptions to the cab-rank principle in Rules 87, 89 and 91; or
(b) competing with any other legal practitioner for the work offered by any
brief for reasons other than those referred to in Rules 87, 89 and 91.
83
A barrister will not have breached Rules 81 and 82 by carrying out a specific task
of research or chamber work given to the barrister by another barrister, or by
giving such a task to another barrister, so long as:
(a) the barrister who was briefed to do the chamber work takes full personal
responsibility for the work;
(b) the work is delivered under the name of the barrister who was briefed;
(c) the arrangement between the barristers does not go beyond an ordinary
devilling or reading arrangement and in particular does not involve any
standing retainer or employment terms; and
(d) the arrangement between the barristers does not provide and is not
intended to enable the barrister giving the task to make a profit from the
other barrister's work, over and above reasonable remuneration for
supervision of and responsibility for the other barrister's work.
84
A barrister must not require that any other particular legal practitioner be
instructed or briefed, as the case may be, so as in any way to impose that
requirement as a condition of the barrister accepting any brief or instructions.
'particular'
84
A barrister must not require that any other particular legal practitioner be
instructed or briefed, as the case may be, so as in any way to impose that
requirement as a condition of the barrister accepting any brief or instructions.
tie 79
85
A barrister must accept a brief from a solicitor to appear before a court in a field in
which the barrister practises or professes to practise if:
(a) the brief is within the barrister's capacity, skill and experience;
(b) 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 fee offered on the brief is acceptable to the barrister; and
(d) the barrister is not obliged or permitted to refuse the brief under Rules 87,
90 or 91.
is (a) fully disjunctive?
86
A barrister must not set the level of an acceptable fee, for the purposes of Rule
85(c), higher than the barrister would otherwise set if the barrister were willing to
accept the brief, with the intent that the solicitor may be deterred from continuing
to offer the brief to the barrister.
87
A barrister must refuse a brief or instructions to appear before a court if:(a) the barrister has information which is confidential to any other person
other than the prospective client, and:
(i) the information may, as a real possibility, be helpful to the
prospective client’s case; and
(iii) 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 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;
(c) the barrister has reasonable grounds to believe that the barrister may, as a
real possibility, be a witness in the case;
(d) the brief is to appear on an appeal and the barrister was a witness in the
case at first instance;
(e) the barrister has reasonable grounds to believe that the barrister’s own
personal or professional conduct may be attacked in the case;
(f) the barrister has a material financial or property interest in the outcome of
the case, apart from the prospect of a fee in the case of a brief under a
conditional costs agreement;
(g) the brief is on the 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;
(h) the brief is for a party to an arbitration in connexion with the arbitration
and the barrister has previously advised or appeared for the arbitrator in
connexion with the arbitration;
(i) the brief is to appear in a contested 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);
(j) the brief is to appear before a court of which the barrister was formerly a
member, or before a court from which appeals lay to a court of which the
barrister was formerly a member (except the Federal Court of Australia in
case of appeals from the Supreme Court of any State or Territory), and the
appearance would occur:
(i) within 2 years after the barrister ceased to be a member of the court
in question, if the barrister was a member of the court for less than
2 years;
(ii) within a period after the barrister ceased to be a member of the
court in question equivalent to the period for which the barrister
was a member of the court, if the barrister was a member of the
court for 2 years or more but less than 5 years; or
(iii) within 5 years after the barrister ceased to be a member of the court
in question, if the barrister was a member of the court for 5 years or
more; or
07/05/01
25
(iv) within 3 months after the barrister ceased to be a parttime
member of the Administrative Decisions Tribunal of New
South Wales;
(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.
cf 80(c)
88
A barrister need not refuse a brief to appear before a court notwithstanding the
application of Rules 87(c) or (e) if:
(a) the barrister believes on reasonable grounds that:
(i) allegations involving the barrister in such a way as to apply one of
those Rules have been raised in order to prevent the barrister from
accepting the brief; and
(ii) those allegations can be met without materially diminishing the
barrister's disinterestedness; and
(b) a member of a Professional Conduct Committee of the Bar Association
who is Senior Counsel approves of the barrister accepting the brief after
the barrister has informed that Senior Counsel of the circumstances.
89
A barrister must refuse a 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, be helpful to the advancement of
the prospective client's interests in the matter on which advice is sought;
and
(b) the person entitled to the confidentiality has not consented beforehand to
the barrister using the information as the barrister thinks fit in giving
advice.
90
A 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 unless:
(a) the person offering the later brief has expressly permitted the barrister to
do so; and
(b) the instructing solicitor in the earlier brief has been informed beforehand
of the barrister's intention to accept the later brief.
'on a day'
91
A barrister may refuse a brief to appear before a court if:
(a) the brief is not offered by a solicitor;
(b) the barrister considers on reasonable grounds that the time or effort
required for the brief threatens seriously to prejudice the barrister's practice
or other professional or personal engagements;
(c) the barrister has reasonable grounds to doubt that the fee will be paid
reasonably promptly or in accordance with the costs agreement;
(d) the brief may, as a real possibility, require the barrister to cross-examine or
criticize a friend or relation;
(e) the solicitor does not agree to a request by the barrister that appropriate
attendances by the instructing solicitor, solicitor's clerk or client
representative will be arranged from time to time for the purposes of:
(i) ensuring that the barrister is provided with adequate instructions to
permit the barrister properly to carry out the work or appearance
required by the brief;
(ii) ensuring that the client adequately understands the barrister's
advice;
(iii) avoiding any delay in the conduct of any hearing or compromise
negotiations; and
(iv) protecting the client or the barrister from any disadvantage or
inconvenience which may, as a real possibility, otherwise be
caused;
(f) the prospective client is also the prospective instructing solicitor, or a
partner, employer or employee of the prospective instructing solicitor, and
has refused the barrister's request to be instructed by a solicitor
independent of the prospective client and the prospective client's firm; or
(g) the barrister, being Senior Counsel, considers on reasonable grounds that
the case does not require the services of Senior Counsel.
Must ask sol if independent sol should be retained
92
A barrister may regard the current listing of a solicitor by the Bar Association as
one who has failed to pay another barrister's fee without reasonable excuse as a
reasonable ground for the doubt referred to in Rule 91(c).
93
A barrister must not return 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 and Rule 94.
94
A barrister who holds a brief to defend a charge of a serious criminal offence and
also any other brief, both of which would require the barrister to appear on a
particular day, must return the other brief as soon as possible, unless the barrister
became aware of the appearance being required on that day in the first brief after
the barrister was committed to appear on that day in the other brief.
95
A barrister must not return a brief to appear in order to accept another brief to
appear unless the instructing solicitor or the client, as the case may be, in the first
brief has permitted the barrister to do so beforehand, after the barrister has clearly
informed the instructing solicitor or the client, as the case may be, of the
circumstances in which the barrister wishes to return the brief and of the terms of
this Rule and Rule 97.
circumstances would appear to need to override duty as disinterested officer of the court; professional first
96
A barrister must not return a brief to appear on a particular date in order to attend
a social occasion unless the instructing solicitor or the client, as the case may be,
has expressly permitted the barrister to do so.
97
A barrister who wishes to return a brief which the barrister is permitted to return
must do so in enough time to give another legal practitioner a proper opportunity
to take over the case.
98
A barrister must promptly inform the instructing solicitor or the client, as the case
may be, as soon as the barrister has reasonable grounds to believe that there is a
real possibility that the barrister will be unable to appear or to do the work
required by the brief in the time stipulated by the brief or within a reasonable time
if no time has been stipulated.
99
A barrister may return a brief if, after acceptance of the brief:
(a) the instructing solicitor or client, as the case may be, has refused the
barrister's request that appropriate attendances by the instructing solicitor,
solicitor's clerk or client representative will be arranged from time to time
for the purposes of:
(i) ensuring that the barrister is provided with adequate instructions to
permit the barrister properly to carry out the work or appearance
required by the brief;
(ii) ensuring that the client adequately understands the barrister's
advice;
(iii) avoiding any delay in the conduct of any hearing or compromise
negotiations; or
(iv) protecting the client or the barrister from any disadvantage or
inconvenience which may, as a real possibility, otherwise be
caused;
(b) the barrister's advice as to the preparation or conduct of the case, not
including its compromise, has been rejected or ignored by the instructing
solicitor or the client, as the case may be; or
(c) fees have not been paid reasonably promptly or in accordance with the
costs agreement, and have remained unpaid after reasonable notice by the
barrister to the instructing solicitor or client, as the case may be, of the
barrister's intention to return the brief for that reason.
100
A barrister may return a brief accepted under a conditional costs agreement if:
(a) the barrister, and the instructing solicitor if any, consider on reasonable
grounds that the client has unreasonably rejected a reasonable offer of
compromise contrary to the barrister's advice;
(b) the client has refused to pay the barrister a reasonable fee for all work done
or to be done after the client's rejection of the offer;
(c) the client was informed before the barrister accepted the brief of the effect
of this Rule; and
(d) the barrister has the firm view that the client has no reasonable prospects
of success or of achieving a result better than the offer.
conjunctive; solicitor must also hold the view; 'firm view' of barrister
101
A barrister who has reasonable grounds to believe that there is a real possibility
that the barrister may cease to be solely a disinterested advocate by becoming also
a witness in the case or a defender of the barrister's own personal or professional
conduct against criticism must return the brief as soon as it is possible to do so
without unduly endangering the client's interests, unless:
(a) the barrister believes on reasonable grounds that:
(i) allegations which involve the barrister in that way have been raised
in order to remove the barrister from the case; and
(ii) those allegations can be met without materially diminishing the
barrister's disinterestedness; and
(b) a member of a Professional Conduct Committee of the Bar Association
who is Senior Counsel approves of the barrister keeping the brief after the
barrister has informed that Senior Counsel of the circumstances.
cf. 88
102
A barrister must return a brief to appear in a contested hearing before the
barrister's parent, sibling, spouse or child or a member of the barrister's household,
unless:
(a) the barrister learns of the identity of the person or persons constituting the
court so close to the hearing date that return of the brief would not give
another legal practitioner enough time to take over the case properly before
the hearing; and
(b) the barrister has sought to draw the circumstances to the court's attention
so as to permit the constitution of the court to be changed.
cf. 87(i)
103
A barrister must not disclose (except as compelled by law) or use in any way in
the course of practice confidential information obtained by the barrister
concerning any person unless or until:
(a) the information has been published;
(b) the information is later obtained by the barrister from another person who
is not bound by the confidentiality owed by the barrister to the first person
and who does not give the information confidentially to the barrister; or
(c) the person has consented to the barrister disclosing or using the
information generally or on specific terms.
'concerning any person'; is 37(a) tautologous?
104
A barrister must not disclose (except as compelled by law) or use confidential
information under Rule 103(c) in any way other than as permitted by the specific
terms of the person's consent.
105
A barrister will not have breached Rules 103 and 104 simply by showing briefs to
a reader or to another barrister doing work as permitted by Rule 83, so long as the
barrister has reminded the reader or the other barrister of barristers' duties of
confidentiality including Rules 103 and 104.
106
A barrister who is shown a brief as a reader or under an arrangement covered by
Rule 83 is bound by the same duties of confidentiality which bind the barrister whose brief it is, including the duties imposed by Rules 103 and 104.
somewhat unecessary in light of terms of 103?
107
A barrister who has accepted a brief must return the brief as soon as possible after
the barrister becomes aware that the barrister has information confidential to a
person other than the client which may, as a real possibility, be helpful to the
client's case or to the advancement of the client's interests, being information
which the barrister is prohibited from disclosing or using by Rules 103, 104 or
106, unless the person entitled to the confidentiality consents to the barrister
disclosing or using the information as the barrister thinks fit.
108
A barrister who is briefed to appear for two or more parties in any case must
determine as soon as possible whether the interests of the clients may, as a real
possibility, conflict and, if so, the barrister must then return the brief for:
(a) all the clients in the case of confidentiality to which Rule 103 would apply;
or
(b) in other cases, one or more of the clients:
(i) giving preference to the earliest brief if the barrister was briefed at
different times; and
(ii) so as to remove that possibility of conflict.
the conflict may be minor; the test is a 'real possibility' of conflict
109
A barrister who, during the hearing of the case, becomes aware that the interests of
the clients or some of them do or may, as a real possibility, conflict, must return
the brief for:
(a) all the clients in the case of confidentiality to which Rule 103 would apply;
or
(b) in other cases, one or more of the clients:
(i) giving preference to the earliest brief if the barrister was briefed at
different times; and
(ii) so as to remove that possibility of conflict.
if briefed at the same time, can flip a coin?
110
A barrister need not return any briefs to appear under Rules 108 or 109, if the
barrister has informed the instructing solicitor or the clients, as the case may be, of
the barrister's view as to the clients' conflicting interests, and the instructing
solicitor or the clients, as the case may be, inform the barrister that all the clients
nonetheless wish the barrister to continue to appear for them.
111
A barrister who believes on reasonable grounds that the interests of the client may
conflict with the interests of the instructing solicitor, or that the client may have a
claim against the instructing solicitor, must:
(a) advise the instructing solicitor of the barrister's belief; and
(b) if the instructing solicitor does not agree to advise the client of the
barrister's belief, seek to advise the client in the presence of the instructing
solicitor of the barrister's belief.
obligatory
112
A barrister with whom another barrister is reading as a reader must seek to assist
the reader with all reasonable skill and diligence to comply with all the
requirements imposed by conditions attached to the reader's practising certificate
under subsection 34(1) of the Act, and in particular must seek to:
(a) instruct the reader in:
(i) the art of advocacy;
(ii) barristers' work;
(iii) the proper conduct of a barrister's practice; and
(iv) the ethical standards required of a barrister, including these Rules;
(b) set aside sufficient time to meet and speak with the reader from time to
time;
(c) make arrangements for the reader to attend the barrister in chambers to be
shown and to assist in chamber work from time to time;
(d) make arrangements for the reader to appear with the barrister in court as an
observer;
(e) ensure that the reader is attending to all necessary or appropriate courses of
instruction arranged by the Bar Association; and
(f) introduce the reader to the barrister's colleagues.
113
A barrister with whom another barrister has read as a reader must certify the
reader to be fit to practice, if it be the case, as required by paragraph 34(1)(c) of
the Act.
114
(1)It would not be reasonable for a barrister to be required to make a disclosure under
section 176 and sub-section 177(2) of the Legal Profession Act when:
(a) the barrister has, whether or not in relation to the legal services to be
provided to the client by the barrister, given to the solicitor on whose
instructions the barrister is acting in writing a statement which remains
current and which indicates the basis upon which the barrister charges and
his or her rate or rates;
(b) the barrister proposes to charge and does charge for those services in
accordance with that basis and rate or rates.
(2) It would not be reasonable for a barrister to be required to make a disclosure under
Section 176 and sub-section 177(2) of the Legal Profession Act when the costs for
the legal services to be provided to the client by the barrister have been fixed by
statute or regulation.