The New South Wales Barristers' Rules
Made under s57A of the Legal Profession Act 1987 (NSW) by the New South Wales Bar Council
Consolidated in April 2001 by incorporating amendments, which took affect upon gazettal, in NSW Government Gazette No. 67, 12 April 2001, p.1880.
CONTENTS
1-7 Preamble
8-15 Introduction & Interpretation
16-72 Advocacy Rules
16, 17 Duty to client
18-20 Disinterestedness
21-31 Frankness in court
32-34 Delinquent or guilty clients
35-40 Responsible use of court process and privilege
41-42A Efficient administration of justice
43-50 Integrity of evidence
51-58 Duty to opponent
59-61 Integrity of hearings
62-72 Prosecutor's duties
73 Opinions
74-80 Barristers' work
78, 79 Referral to solicitor
80 Disclosure to direct access client
81-84 Sole Practitioner Rules
84 Third-line forcing
85-102 Cab-Rank Rules & Briefs
85, 86 Cab-rank principle
87-90 Briefs which must be refused
91, 92 Briefs which may be refused
93-102 Return of briefs
103-111 Confidentiality and Conflicts
112-113 Reading
114 Fee disclosures
PREAMBLE
These Rules are made in the belief that:
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.
INTRODUCTION & INTERPRETATION
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 Court [1], the Act [2] (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 Act [5].
[1] see section 171M
[2] see e.g., sections 38J, 38P, 175, 176, 177
[3]see section 127
[4] see e.g., Hinch v. Attorney-General (Vic.) (1987) 164 CLR 15 and the authorities cited under Rule 59
[5] see, e.g., sections 38I, 38J, 38K, 38M, 38N, 48B
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.
15. Unless the context requires otherwise, the following expressions are defined
as follows when used in these Rules:
"Act" means the Legal Profession Act 1987.
"allege" includes conduct constituted by settling or opening on pleadings, affidavits or witness statements, and reading or tendering affidavits or witness statements filed or prepared for the client (whether or not they were drawn or settled by the barrister).[Inserted Gazette No. 7, 21 January 2000, p.348]
"assessment of costs" includes the taxation of costs in proceedings not governed by the amendments to the Act introduced by the Legal Profession Reform Act 1993 with respect to the assessment of costs.
"barristers' work" means work permitted by Rule 74.
"brief offered under includes a brief accepted before the a conditional costs amendments to the Act introduced by the agreement" Legal Profession Reform Act 1993 came into effect with respect to conditional costs agreements, being a brief accepted on the basis that the barrister would not be paid any fee unless the client succeeds to an agreed extent in the case.
"case" means the litigation or proceedings in which the barrister in question is briefed to appear, or the dispute in which the barrister is advising, as the case
may be."client" means the client of the barrister in question, and includes a professional acting as such, and in Rules 32, 34 and 46 includes those officers, servants or agents of a client which is not a natural person who are responsible for or involved in giving instructions on behalf of the client.
[Inserted Gazette No. 66 of 20 June 1997 p 4552]
"compromise" includes any form of settlement of the case, whether pursuant to a formal offer under the rules or procedure of a court, or otherwise.
"court" means any body described as such and all other judicial tribunals, and, except in Rule 4, all statutory tribunals, and, except in Rules 4 and 87(j), all statutory or Parliamentary investigations and inquiries, Royal Commissions, the Independent Commission Against Corruption, arbitrations and mediations.
"criminal proceedings" includes disciplinary proceedings, in which context other expressions appropriate to criminal proceedings include corresponding meanings appropriate to disciplinary proceedings and in particular "a serious criminal offence" includes a disciplinary shortcoming which, if proved, involves the serious possibility of suspension or deregistration (or the equivalent).
"current proceedings" means proceedings which have not been determined, including proceedings in which there is still the real possibility of an appeal or other challenge to a decision being filed, heard or decided.
"fee" includes any payment for the reimbursement of expenses.
"forensic judgements" do not include decisions as to the commencement of proceedings, the joinder of parties, admissions or concessions of fact, amendments of pleadings or undertakings to a court, or in criminal proceedings as to a plea, but do include advice given to assist the client or the instructing solicitor to make such decisions.
"instructing solicitor" means the solicitor from whom the barrister in question has accepted a brief or who is instructing that barrister in that brief, as the case may be, but does not include a solicitor appearing with the barrister as a joint advocate under section 38M of the Act.
"insurance company" in Rule 55 includes any entity, whether statutory or otherwise, which performs the function of indemnifying in any way civil defendants.
[Inserted Gazette No. 66 of 20 June 1997 p 4552]
"legal advice" includes assistance at or presiding over meetings.
"legislation" includes all kinds of delegated legislation.[Inserted Gazette No.7 of 21 January 2000, p.348]
"member" of a court, in Rule 87(j), does not include the holder of an acting commission or appointment.
"opponent" means the legal practitioner appearing for the party opposed to the client, or the party opposed to the client if that party is unrepresented.
"order" includes a judgement, decision or determination.
"professional" when used as a noun means a person actively engaged in an occupation generally recognised as being a profession, and includes accountants, architects, engineers, surveyors, town planners and valuers.
"prosecutor" means a barrister who appears for the complainant or Crown in criminal proceedings.
"reader" means a barrister who is subject to a condition or conditions attached to the barrister's practising certificate under paragraph 34(1)(c) of the Act.
[Amended Gazette No.7 of 21 January 2000, p.348]
"representative" means the barrister or, if no barrister, the solicitor who is retained by the party in question.
"Senior Counsel" means a barrister or those barristers appointed as such by the President of the Bar Association, and includes Her Majesty's Counsel appointed in and for the State of New South Wales.
ADVOCACY RULES
Duty to client
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.
[Inserted Gazette No.7 of 21 January 2000, p.348]
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.
[Inserted Gazette No.7 of 21 January 2000, p.348]
Disinterestedness
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] .
[Amended Gazette No. 66 of 20 June 1997 p 4552]
[6] cf. Giannarelli v. Wraith (1988) 165 CLR 543 per Mason CJ at 556-7 [see paras 10 to 13]
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.[7]
[7] cf. Richardson v. The Queen (1974) 131 CLR 116 per Barwick CJ, McTiernan and Mason JJ. at 123 [see
para 21].
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.
[Amended Gazette No. 66 of 20 June 1997 p 4552]
Frankness in court
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.
[Substituted Gazette No.7 of 21 January 2000, p.348]
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.
[Inserted Gazette No. 66 of 20 June 1997
p 4564]
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.
[Amended Gazette No. 66 of 20 June 1997 p 4552]
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.
[Amended Gazette No. 66 of 20 June 1997, p 4553]
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.
[Amended Gazette No. 66 of 20 June 1997 p 4553 and Gazette No. 88 of 8 August
1997 p 6111]
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.
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.
Delinquent or guilty clients
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.
[Amended Gazette No. 66 of 20 June 1997 p 4553]
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.
[Amended Gazette No. 66 of 20 June 1997 p 4554]
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.
Responsible use of court process and privilege
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.[8]
[Amended Gazette No. 66 of 20 June 1997 p 4554]
[8] cf. Clyne v. New South Wales Bar Association (1960) 104 CLR 186 per Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer
JJ. at 200-1[paras 21 to 24]
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.
[Substituted Gazette No.7 of 21 January 2000, p.348]
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.
[Substituted Gazette No.7 of 21 January
2000, p.348]
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.
[Substituted Gazette No.7 of 21 January 2000, p.348]
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).
[Substituted Gazette No.7 of 21 January 2000, p.348]
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.
[Previously Rule 42, Renumbered Gazette No.7 of 21 January 2000, p.348]
Efficient administration of justice
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.
[Substituted Gazette No.7 of 21 January 2000, p.348]
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. [9]
[Substituted Gazette No.7 of 21 January 2000, p.348]
[9] cf. Ashmore v Lloyd's [1992] 1 W.L.R. 446 per Lord Templeman at 453G
- 454A and see also Supreme Court Rules Part 1 rule 3
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.
[Inserted Gazette No.7 of 21 January 2000, p.348]
Integrity of evidence
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.
[Amended Gazette No. 66 of 20 June 1997 p 4555]
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.
[Amended Gazette No. 66 of 20 June 1997 p 4555-4556]
45. [Repealed Gazette No. 66 of 20 June 1997 at p4565]
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.
[Amended Gazette No. 66 of 20 June 1997 p 4556]
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.
[Amended Gazette No. 66 of 20 June 1997 p 4556 and Gazette No. 88 of 8 August 1997 p 6111]
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.
[Amended Gazette No. 66 of 20 June 1997 p 4556]
Duty to opponent
51. A barrister must not knowingly make a false statement to the opponent
in relation to the case [10] (including its compromise).
[10] see Fair Trading Act, 1987 (NSW) sections 4 and 42
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.
[Amended Gazette No. 66 of 20 June 1997 p 4556]
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.
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.
Integrity of hearings
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 [11].
[Amended Gazette No. 66 of 20 June 1997 p 4557-4558]
[11] 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. A 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.
[Amended Gazette No. 66 of 20 June 1997 p 4558]
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.
Prosecutor's duties
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.
[Amended Gazette No. 66 of 20 June 1997 p 4558]
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. [12]
[Amended Gazette No. 66 of 20 June 1997 p 4558]
[12] see, e.g., 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.
[Amended Gazette No. 66 of 20 June 1997 p 4558]
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.
[Inserted Gazette No. 66 of 20 June 1997
p 4564 - 4565]
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.
[Inserted Gazette No. 66 of 20 June 1997 p 4564-4565, Amended Gazette No.7, 21 January 2000, p.348]
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.
[Inserted Gazette No. 66 of 20 June 1997
p 4558]
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.
[Amended Gazette No. 66 of 20 June 1997 p 4559]
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.
OPINIONS
73. A barrister must give the barrister's truthful opinion on any matter submitted
to the barrister for advice or opinion. [13]
[13] see Fair Trading Act 1987(NSW) sections 4 and 42
BARRISTERS' WORK
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). [14]
[Amended Gazette No. 66 of 20 June 1997 p 4550]
[14] see also Rule 80
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.
[Amended Gazette No. 66 of 20 June 1997 p 4550-1]
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.
[Amended Gazette No. 66 of 20 June 1997 p 4551]
77. A barrister must not, in the barrister's professional work, hold, invest
or disburse any funds for any other person. [15]
[Amended Gazette No. 66 of 20 June 1997 p 4551]
[15] see section 38P of the Act
and see also clause 46J of the Legal Profession Regulation 1994 (NSW)
Referral to solicitor
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.
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.
Disclosure to direct access client [16]
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.
[Amended Gazette No.88, 8 August 1997, p.6111]
[16] see section 38I of the Act
SOLE PRACTITIONER RULES
81. A barrister must be a sole practitioner, and must not practise:
(a) in partnership with any person [17];
(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.
[Amended Gazette No. 66 of 20 June 1997 p 4559]
[17] see sections 48F and 48G of the Act
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.
[Amended Gazette No.7 of 21 January 2000, p.348]
Third-line forcing
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.
CAB-RANK RULES & BRIEFS
Cab-rank principle
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.
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.
Briefs which must be refused
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
(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 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
(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.
[Amended Gazette No. 66 of 20 June 1997 p 4559-61 and Gazette No.67 or 12 April 2001, p.1880]
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.
[Amended Gazette No. 66 of 20 June 1997 p 4561]
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.
Briefs which may be refused
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.
[Amended Gazette No. 66 of 20 June 1997 p 4561-62]
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).
[Amended Gazette No.7 of 21 January 2000,
p.348]
Return of briefs
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.
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.
[Amended Gazette No. 66 of 20 June 1997 p 4562-63]
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.
[Amended Gazette No. 66 of 20 June 1997
p 4563]
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.
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.
CONFIDENTIALITY & CONFLICTS
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.
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.
[Amended Gazette No.7 of 21 January 2000, p.348]
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.
[Amended Gazette No.7 of 21 January 2000, p.348]
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.
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.
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.
READING
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.
[Amended Gazette No.7 of 21 January 2000, p.348]
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.
[Amended Gazette No.7 of 21 January 2000, p.348]
FEE DISCLOSURES
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.
[Inserted Gazette No. 66 of 20 June 1997 p 4551-2]
Table of Amendments
NSW Government Gazette No.7, 21 January 2000, p.348
NSW Government Gazette No.88, 8 August 1997, p.6111
NSW Government Gazette No.66, 20 June 1997, p.4550
NSW Government Gazette No.67, 12 April 2001, p.1880