Confidentiality and conflicts Flashcards
(10 cards)
- Not disclose CI to unless CI given by someone else or consented to
A barrister must not disclose (except as compelled by law) or use in any way confidential information obtained by the barrister in the course of practice concerning any person to whom the barrister owes some duty or obligation to keep the information confidential unless or until:
(a) 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
(b) the person has consented to the barrister disclosing or using the information generally or on specific terms.
- Cannot disclose outside limits of consent
A barrister must not disclose (except as compelled by law) or use confidential information under rule 114 (b) in any way other than as permitted by the specific terms of the person’s consent.
- No breach by showing to staff, soli, devil
A barrister does not breach rules 114 and 115 simply by showing briefs to or disclosing information contained in a brief to the barrister’s instructing solicitor in the matter, to a member of the barrister’s staff for the purposes of that person undertaking clerical or administrative work in relation to the matter, or to a reader or to another barrister doing work as permitted by rule 113.
- Devil subject to same duties of conf
A barrister who is shown a brief as a reader or under an arrangement covered by rule 113 is bound by the same duties of confidentiality which bind the barrister whose brief it is, including the duties imposed by rules 114 and 115.
- B aware of CI of another, must return
A barrister must return a brief other than a brief to appear 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 material 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 unless the person entitled to the confidentiality consents to the barrister disclosing or using the information as the barrister thinks fit.
- If appearing 2+, determine real poss conf
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 114 would apply, or
(b) one or more of the clients so as to remove that possibility of conflict.
- Interests conflict with instructing soli
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.
- Must not give undertaking on soli/C bhf w/o authority
A barrister must not give an undertaking to the court on behalf of a solicitor or a client without express authority of the person concerned.
- Not disclose to court comm b/w B and opp
A barrister must not disclose to the court, whether in submissions, examination, cross-examination or otherwise, any communication between the barrister and legal representatives appearing in the proceedings for any other party to the proceedings:
(a) except by consent,
(b) unless what occurred resulted in the creation of some contractual or other legal relationship,
(c) unless it was expressly stated before or at the commencement of such communication that matters communicated should not be regarded as without prejudice or privileged from use or disclosure, or
(d) unless disclosure is required by the court.
- Discrim, sexual harassment, bullying
(1) A barrister must not in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes:
(a) discrimination,
(b) sexual harassment, or
(c) bullying.
(2) For the purposes of subrule (1), conduct in connection with a barrister’s profession includes, but is not limited to:
(a) conduct at social functions connected with the bar or the legal profession, and
(b) interactions with a person with whom the barrister has, or has had, a professional relationship.
