Practice exam problem questions Flashcards
You are brief to appear in District Court application and as a part of the brief you are required to settle an affidavit. When you read the brief you realise you will not have time to settle the affidavit when it is due to be filed under court orders to be made what should you do?
(2 marks)
Rule: r 56 where barrister has reasonable grounds to believe that may not complete any such work on time must promptly inform the instructing solicitor the client (1 mark).
Active role: Counsel should inform the instructing solicitor or client will be unable to settle affidavit in compliance with court order and to seek and should seek an extension of the deadline by consent (1 mark).
You are briefed to appear on a common assault hearing. As a part of your conference with the client and instructing solicitor, you explain the ‘real issue’ in the proceeding is whether the assault was lawful. The other elements such as time, date, place, and identity are clearly established on the crown case. You advise the instructing solicitor and client to make admissions of fact or concessions during closing to these non-contentious elements and you explain the benefits of doing so which include limiting a crown witness and focusing courts attention on excuses etc. Your client says ‘fuck the courts, the cops, and the witnesses…I want to make this hearing as long as possible…and I want you to submit they can’t prove anything!”
Discuss your proposed ethical course (3 marks)
R 25 a barrister has a paramount duty to the court to act with independence in the interest of the administration of justice
r 41 a barrister must not act as a mere mouth piece of the client or the instructing solicitor and must exercise forensic judgment called for during the case after consideration of instructions
r 42 a barrister will not have breached duty to client by exercising forensic judgment to…confine issues in the case to those real issues…present case as quickly and simply as needed for robust advancement…
r 39 barrister must seek to assist the client in understanding the issues in the case…
I explain to client that the administration of justice, and the court relies, upon barristers to exercise independent judgement in the management and presentation of cases…and I have a further duty to the client and the court to advance arguments which are reasonably raised on the evidence…however I have a duty to not run arguments which are baseless because I have a duty to not waste court time, and resources, to ensure the efficient administration of justice (giannnerie v wraith)
I would advise given the client has made admissions to me that all the elements are not contested but it is a question of lawfulness…I would suggest confiding the issues to that element which I believe are real issues…this would be consistent with ethical duties and would allow the court to focus on our arguments…which could build credibility with the judicial officer…if the client refuses could consider returning the brief under r 99(g)…
You have just commenced practice as a barrister. Your old law firm offers you your first brief which you accept. You are very grateful that you wish to send their office a gift showing your appreciation.
Is there any ethical rule prohibiting this?
(1 mark)
Yes
Rule: r 45 a barrister must not give a commission or gift to any person by reason of or in connect with the instruction of professional work by that person the barrister.
Question: You are instructed to appear on three-week GBH trial before the Supreme Court at Cairns.
Your client has instructed you he was acting in self-defence.
The prosecution case has now closed. You have now commenced calling witnesses on behalf of the defendant, however during a lunch break your client tells you the witness, his mate Danny Smith, who just finished giving evidence lied about what the complainant said during the incident. The client knows this because he asked him to lie for him.
He explained that he did this because the is won’t be able to survive in jail should be convicted and his mate is good bloke who will give convincing evidence. Mr Smith evidence is material to the excuse of self-defence. You still have a several witnesses to call.
Question 1: What is the appropriate ethical course? (3 marks)
Rule: r 79 a barrister who learns because of information provided by the client called on behalf of the client learns that during a hearing and whilst it remains pending a witness called has lied in court must refuse to take any further part in the hearing unless the client authorise the barrister to inform the court of the lie and must inform the court promptly of the lie but otherwise must not tell the court.
Rationale: The rule exists as counsels’ primary duty is to assist the court in the administration of justice (r 25) and must not knowingly mislead the court (r 26) to rely on evidence known to be false would contravene these duties which is why unless consent to disclose is given cannot take further part in matter.
Active role: I would explain to the instructing solicitor client that unless he instructs me to inform the court, I must not take any further part in the matter because of paramount duty to the court or administration of justice. Should those instructions be provided, I would inform the court that the witnesses evidence would not be relied upon.
What are the barristers conduct rules? who do they apply to? and what is the consequence of non compliance?
(1 mark)
The barrister conducts are rules made by the barrister association as permitted by s 220 of the LPA.
The general purpose of the rule is to provide the requirements of practice as a barrister and the standard of conduct (r 2).
The rules apply to any barrister who is a local barrister, interstate barrister, or barrister employed by the crown (r 10)
The rules are not intended to be a complete or detailed code of conduct…supreme court, LPA, and general law still apply (r 10; s 227).
Contravention of the rules may result in disciplinary action (s 227 LPA).
You are brief to appear on a civil litigation matter. Your client has commenced proceedings against a television network for defamation. Your client is a high-profile football player. Your client has asked whether he can hold a press conference regarding the commencement of the proceedings.
Are you permitted to provide advice about the holding of the press conference? And if so what do you tell your client
(2 mark)
You have been approached by a solicitor to act on behalf of a mining company. You have a small shareholding in the company. The company has commenced proceedings for specific performance of a several billion-dollar contract.
The case on face value appears very strong. Should the proceedings be successful the share price of the company is forecast to skyrocket with the company likely to pay its shareholders a large dividend. The brief is within your capacity, skill, and experience, and the fee being offered is acceptable.
Does the cab rank rule require you to accept the brief? (2 marks)
Rule: Cab rank rule - r 21 barrister must accept a brief from a solicitor to appear before a court in a field which the barrister practices where (a) brief is within capacity, skill, or experience (b) available to work, (c) fee is acceptable and (d) the barrister is not obligated to refuse the brief as per r 95, 97, 98, or 99.
Ethical course: Here the cab rank rule would not require me to accept the brief as per 95(g) as I have a material financial interest in the out come of the case, apart from the prospect of a fee. I would have to inform the solicitor that I can’t accept.
