Accepting and refusing briefs Flashcards
- Cab rank principle: B must accept brief from sol if: (a) to (d) satisfied
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 rule 101, 103, 104 or 105.
- Setting high fees to deter briefs
A barrister must not set the level of an acceptable fee, for the purposes of rule 17 (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.
- Requiring particular prac. also be briefed
A barrister must not require that any other particular legal practitioner be instructed or briefed so as in any way to impose that requirement as a condition of the barrister accepting any brief or instructions.
- Arrangement to prevent certain briefs
A barrister must not make or have any arrangement with any person in connection 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 rule 101, 103, 104 or 105, or
(b) competing with any other legal practitioner for the work offered by any brief for reasons other than those referred to in rule 101, 103, 104 or 105.
- Direct briefs
Nothing in these Rules shall be taken to oblige a barrister to accept instructions directly from a person who is not a solicitor.
- Written acknowledgement re: direct brief
A barrister who proposes to accept instructions directly from a person who is not a solicitor or officer of a government department or agency whose usual duties include engaging lawyers must:
(a) inform the prospective client in writing of:
(i) the effect of rules 11 and 13,
(ii) the fact that circumstances may require the client to retain an instructing solicitor at short notice, and possibly during the performance of the work,
(iii) 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,
(iv) 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
(v) a fair description of the advocacy experience of the barrister, and
(b) obtain a written acknowledgement, signed by the prospective client, that he or she has been informed of the matters in (a) above.
- Briefs which must be refused or returned
A barrister must refuse to accept or retain a brief or instructions to appear before a court if:
(a) the barrister has information which is confidential to any other person in the case other than the prospective client, and:
(i) the information may, as a real possibility, be material 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 client’s interest in the matter or otherwise is or would be in conflict with the barrister’s own interest or the interest of an associate,
(c) 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,
(d) the barrister has reasonable grounds to believe that the barrister may, as a real possibility, be a witness in the case,
(e) the brief is to appear on an appeal and the barrister was a witness in the case at first instance,
(f) the barrister has reasonable grounds to believe that the barrister’s own personal or professional conduct may be attacked in the case,
(g) the barrister has a material financial or property interest in the outcome of the case, apart from the prospect of a fee,
(h) 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,
(i) the brief is for a party to an arbitration in connection with the arbitration and the barrister has previously advised or appeared for the arbitrator in connection with the arbitration,
(j) the brief is to appear in a contested or ex parte 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,
(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,
(l) the barrister has already advised or drawn pleadings for another party to the matter, or
(m) the barrister has already discussed in any detail (even on an informal basis) with another party with an adverse interest in the matter the facts out of which the matter arises.
101A. Refusal of briefs by barristers who are current and former judges or tribunal members
(2) A barrister must refuse to accept or retain a brief or instructions to appear before a
court if:
(a) the brief is to appear before a court:
(i) of which the barrister is or was formerly a judge, or
(ii) from which appeals lie to a court of which the barrister is or was formerly a judge, and
(b) the appearance would occur less than 5 years after the barrister ceased to be a judge of the court.
(3) A barrister must refuse to accept or retain a brief or instructions to appear before a tribunal that does not sit in divisions or lists of matters to which its members are assigned if:
(a) the barrister is a full time, part time or sessional member of the tribunal, or
(b) the appearance would occur less than 2 years after the barrister ceased to be a member of the tribunal.
(4) A barrister must refuse to accept or retain a brief or instructions to appear before a tribunal that sits in divisions or lists of matters to which its members are assigned if:
(a) the brief is to appear in a proceeding in a division or list to which the barrister is assigned as a member of the tribunal, or
(b) the brief is to appear in a proceeding in a division or list to which the barrister was assigned and the appearance would occur less than 2 years after the barrister ceased to be assigned to the division or list.
(5) The former rules continue to apply to a barrister who was, before 1 July 2015, appointed as a judge, justice, magistrate, coroner, master, prothonotary, registrar or other judicial officer, or a person acting in any of those offices.
- where allegation raised to prevent B from accepting brief: need not return
A barrister need not refuse or return a brief, notwithstanding the application of rule 101 (f) if the barrister believes on reasonable grounds that:
(a) 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
(b) those allegations can be met without materially diminishing the barrister’s disinterestedness.
- where B has confidential information, must refuse brief
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, affect the prospective client’s interests in the matter on which advice is sought or may be detrimental to the interests of the first person, 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.
- Must not accept brief to appear if already committed
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 if by appearing on one of the briefs the barrister would not in the normal course of events be able to appear on the other brief or briefs.
- Briefs which may be refused or returned
A barrister may refuse or return a brief to appear before a court:
(a) if the brief is not offered by a solicitor,
(b) if the barrister considers on reasonable grounds that the time or effort required for the brief threatens to prejudice the barrister’s practice or other professional or personal engagements,
(c) if the instructing solicitor does not agree to be responsible for the payment of the barrister’s fee,
(d) if the barrister has reasonable grounds to doubt that the fee will be paid reasonably promptly or in accordance with the costs agreement,
(e) if the brief may, as a real possibility, require the barrister to cross-examine or criticise a friend or relative,
(f) if the solicitor does not comply with a request by the barrister for appropriate attendances by the instructing solicitor, solicitor’s clerk or client representative 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, and
(iv) protecting the client or the barrister from any disadvantage or inconvenience which may, as a real possibility, otherwise be caused,
(g) if 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,
(h) if 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,
(i) if the barrister, being a Senior Counsel, considers on reasonable grounds that the brief does not require the services of a Senior Counsel,
(j) if the barrister, being a Senior Counsel, considers on reasonable grounds that the brief also requires the services of a junior counsel and none has been briefed,
(k) where there is a personal or business relationship between the barrister and the client or another party, a witness, or another legal practitioner representing a party,
(l) where the brief is to appear before a judge whose personal or business relationship with the barrister is such as to give rise to the apprehension that there may not be a fair hearing, or
(m) in accordance with the terms of a costs agreement which provide for return of a brief.
- B may refuse brief if client unreasonably rejected offer to compromise contrary to advice
A barrister may return a brief accepted under a conditional costs agreement if the barrister considers on reasonable grounds that the client has unreasonably rejected a reasonable offer to compromise contrary to the barrister’s advice.
- B must not return brief if serious crim offence, only excep. circs
A barrister must not return under rule 105 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.
- B must not return brief to accept another brief unless permitted by client or instructing sol
A barrister must not return a brief to appear in order to accept another brief to appear unless the instructing solicitor or the client in the first brief has permitted the barrister to do so beforehand, after the barrister has clearly informed the instructing solicitor or the client of the circumstances in which the barrister wishes to return the brief and of the terms of this rule and rule 110.
- B must not return brief to attend social occasion
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 has expressly permitted the barrister to do so.
- Return with enough time
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.
- Inform solicitor/client asap
A barrister must promptly inform the instructing solicitor or the client 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.
- Solicitor consent to give brief away
A barrister must not hand over a brief to another barrister to conduct the case, or any court appearance within the case, unless the instructing solicitor has consented to that course.
- Devilling
A barrister does not breach rule 12 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 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.
