The Ethics of the Advocate Part 2

 2011 Rules  2007 Rules 2. The general purpose of these Rules is to provide the requirements for practice as a barrister and the rules and standards of conduct applicable to barristers which are appropriate in the interests of the administration of justice and in particular to provide common and enforceable rules and standards which require barristers:

(a) to be completely independent in conduct and in professional standing as sole practitioners; and

…

4. The object of these Rules is to ensure that all barristers:

5. These Rules are made in the belief that:

(a) barristers owe their paramount duty to the administration of justice;

(b) barristers must maintain high standards of professional conduct;

(c) barristers as specialist advocates in the administration of justice, must act honestly, fairly, skilfully and with competence and diligence;

(d) barristers owe duties to the courts, to their clients and to their barrister and solicitor colleagues;

(e) barristers should exercise their forensic judgments and give their advice independently and for the proper administration of justice, notwithstanding any contrary desires of their clients; and

(f) the provision of advocates for those who need legal representation is better secured if there is a Bar whose members:

(i) must accept briefs to appear regardless of their personal beliefs;

(ii) must not refuse briefs to appear except on proper professional grounds; and

(iii) compete as specialist advocates with each other and with other legal practitioners as widely and as often as practicable.

These Rules are made in the belief that:

1. The administration of justice is best served by reserving the practice of law to those 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 fearlessly.

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 judgments 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.

6. These Rules should be construed to promote the objects and principles expressed in this Introduction.

10. These Rules are not intended to be 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, the Legal Profession Act 2007 and in the general law (including the law relating to contempt of court).

Waiver of Rules

The Bar Council shall either before or after the event have the power to waive the duty imposed on a barrister to comply with the provisions of these Rules in such circumstances and to such extent as the Bar Council may think fit and either conditionally or unconditionally.  10. 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, in the Legal Profession Act 2007  and in the general law (including the law relating to contempt of court).

11. These Rules should be read and applied so as most effectively to attain the objects and uphold the values expressed in their Preamble. 12. A barrister must not engage in conduct which is:

(a) dishonest or otherwise discreditable to a barrister;

(b) prejudicial to the administration of justice; or

(c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

13. A barrister must not engage in another vocation which:

(a) is liable to adversely affect the reputation of the legal profession or the barrister’s own reputation;

(b) is likely to impair or conflict with the barrister’s duties to clients; or

(c) prejudices a barrister’s ability to attend properly to the interests of the barrister’s clients.

14. A barrister may not use or permit the use of the professional qualification as a barrister for the advancement of any other occupation or activity in which he or she is directly or indirectly engaged, or for private advantage, save where that use is usual or reasonable in the circumstances. Cab-rank principle

21. 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 95, 97 , 98 or 99.  

89. A barrister must accept a brief from a solicitor 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;

(d) the barrister is not obliged or permitted to refuse the brief under Rules 91, 92, 93, 95. 96 and 97. 22. A barrister must not set the level of an acceptable fee, for the purposes of Rule 21(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. 90. A barrister must not set the level of an acceptable fee, for the purposes of Rule 89(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 may be refused or returned 99.    A barrister may refuse or return a brief to appear before a court:     … (n) in such other circumstances as may be permitted by the President or a delegate of the President who is a Senior Counsel.    Duty to the Court

25. A barrister has an overriding duty to the Court to act with independence in the interests of the administration of justice. 26. A barrister must not deceive or knowingly or recklessly mislead the Court. 23. A barrister must not knowingly make a misleading statement to a court on any matter.  27. 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.  24. 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.   28. A barrister must alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is to the knowledge of the barrister contrary to the true position and is believed by the barrister to have been made by mistake.    

29. A barrister seeking any interlocutory relief in an ex parte application must disclose to the court all factual or legal 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. 25. 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. 30. A barrister who has knowledge of matters which are within Rule 29(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 29; 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 authorise such disclosure and the possible consequence of not doing so; and

(ii) must refuse to appear on the application.

 26. A barrister who has knowledge of matters which are within Rule 25(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 25; 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 authorise such disclosure and the possible consequence 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.

 

31. A barrister must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of:

(a) any binding authority; 

(b) where there is no binding authority any authority decided by an Australian appellate court; and

(c) any applicable legislation;

known to the barrister and which the barrister has reasonable grounds to believe to be directly in point, against the client’s case.  27. 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 an intermediate court of appeal in Australia;

(c) any authority, including any authority on the same or materially similar legislation as that in question in the case, decided at first instance in the Federal Court or a Supreme Court, or by superior appellate courts, which has not been disapproved; or

(d) any applicable legislation

 of which the barrister is aware, and which the barrister has reasonable grounds to believe to be directly in point, against the client’s case.  32. A barrister need not inform the court of matters within Rule 31 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.  28. A barrister need not inform the court of matters within Rule 27 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. 33. A barrister who becomes aware of a matter within Rule 31 after judgment 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. 29. A barrister who becomes aware of a matter within Rule 27 after judgment 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 re-list 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. 34. A barrister need not inform the court of any matter otherwise within Rule 31 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence. 30. A barrister need not inform the court of any matter otherwise within Rule 27 which would have rendered admissible any evidence tendered by the prosecution which the court has ruled inadmissible without calling on the defence.   31. 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. 35. 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. 32. 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.  

36. A barrister must inform the court of a 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.  33. A barrister must inform the court in civil proceedings of a 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. Duty to client

37. A barrister must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person.  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.  

Independence

41. A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s wishes where practicable.

 

Disinterestedness

 20. A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s desires where practicable. 42. A barrister will not have breached the barrister’s duty to the client, and     will not have failed to give appropriate consideration to the client’s or     the instructing solicitor’s wishes, simply by choosing, contrary to those     wishes, to exercise the forensic judgments 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. 21. 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 judgments 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.    14. Unless the context requires otherwise, the following expressions are defined as follows when used in these Rules:

…

“forensic judgments” — 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, a plea in criminal proceedings, but  do include advice given to assist the client or the instructing solicitor to make  such decisions  Efficient administration of justice

56. A barrister:

(a) must seek to ensure that the barrister does work which the barrister is briefed to do in sufficient time to enable compliance with orders, directions, Rules or practice notes of the court; and

(b) if the barrister has reasonable grounds to believe that the barrister may not complete any such work on time must promptly inform the instructing solicitor or the client.

57. 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.

58. 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.  

Responsible use of court process and privilege

59. A barrister must take care to ensure that the barrister’s advice to invoke the coercive powers of a court:

(a) is reasonably justified by the material then available to the barrister;

(b) is appropriate for the robust advancement of the client’s case on its merits;

(c) is not made principally in order to harass or embarrass a person; and

(d) is not made principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor out of court.  

 

37. A barrister must, when exercising the forensic judgments called for throughout a 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 then 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. 60. A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person:

(a) are reasonably justified by the material then available to the barrister;

(b) are appropriate for the robust advancement of the client’s case on its merits; and

(c) are not made principally in order to harass or embarrass a person.   61. Without limiting the generality of Rule 60, in proceedings in which an allegation of sexual assault, indecent assault or the commission of an act of indecency is made and in which the alleged victim gives evidence:

(a) a barrister must not ask that witness a question or pursue a line of questioning of that witness which is intended:

 (b) a barrister must take into account any particular vulnerability of the witness in the manner and tone of the questions that the barrister asks.   62. A barrister will not infringe Rule 61 merely because:

(a) the question or questioning challenges the truthfulness of the witness or the consistency or accuracy of any statements made by the witness, or

(b) the question or questioning requires the witness to give evidence that the witness could consider to be offensive, distasteful or private.   63. 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.  39. A barrister must not open as a fact any allegation which the barrister does not then believe on reasonable grounds will be capable of support by the evidence which will be available to support the client’s case.  

64. 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.  

38. A barrister must not draw or settle any court document alleging criminality, fraud or other serious misconduct unless the barrister believes on reasonable grounds that:

(a) factual material already available to the barrister provides a proper basis for the allegation if it is made in a pleading;

(b) the evidence in which the allegation is made, if it is made in evidence, will be admissible in the case, when it is led; and;

 (c) 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 if it is not made out.   40. A barrister must not cross-examine so as to suggest criminality, fraud or other serious misconduct on the part of any person unless:

(a) the barrister believes on reasonable grounds that the material already available to the barrister provides a proper basis for the suggestion;

(b) in cross-examination going to credit alone, the barrister believes on reasonable grounds that affirmative answers to the suggestion would diminish the witness’s credibility.   42. A barrister must make reasonable enquiries to the extent which is practicable before the barrister can have reasonable grounds for holding the belief by Rule 40(a), unless the barrister has received and accepted an opinion from the instructing solicitor within Rule 41.    

43. A barrister must not suggest criminality, fraud or other serious misconduct against any person in the course of the barrister’s address on the evidence unless the barrister believes on reasonable grounds that the evidence in the case provides a proper basis for the allegation. 65. 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 63 and 64 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). 41. A barrister may regard the opinion of the instructing solicitor that material which appears to support a suggestion within Rule 40 is itself credible as a reasonable ground for holding the belief required by Rule 40(a). 66. 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 credibility of the evidence of the witness.  See r 40(b) 67. A barrister who has instructions which justify submissions for the client in mitigation of the client’s criminality 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 proper conduct of the client’s case. 44. 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. Delinquent or guilty clients

78. A barrister who, as a result of information provided by the client or a witness called on behalf of the client, learns during a hearing or after judgment or decision is reserved and while it remains pending, that the client or a witness called on behalf of the client:

(a) has lied in a material particular to the court or has procured another person to lie to the court; or

(b) has falsified or procured another person to falsify in any way a document which has been tendered; or

(c) has suppressed or procured another person to suppress material evidence upon a topic where there was a positive duty to make disclosure to the court;

 must refuse to take any further part in the case unless the client authorises the barrister to inform the court of the lie, falsification or suppression and must promptly inform the court of the lie, falsification or suppression upon the client authorising the barrister to do so but otherwise may not inform the court of the lie, falsification or suppression. 34. A barrister whose client informs the barrister, during a hearing or after judgment or decision is reserved and while it remains pending, that, upon an issue which may be material 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 of falsification upon the client authorising the barrister to do so; but

 (c) must not otherwise inform the court of the lie or falsification.

79. A barrister briefed to appear in criminal proceedings whose client confesses guilt to the barrister but maintains a plea of not guilty:

(a) should, subject to the client accepting the constraints set out in sub-rules (b) to (h) but not otherwise, continue to act in the client’s defence;

(b) must not falsely suggest that some other person committed the offence charged;

(c) must not set up an affirmative case inconsistent with the confession;

(d) must ensure that the prosecution is put to proof of its case;

(e) may argue that the evidence as a whole does not prove that the client is guilty of the offence charged;

(f) may argue that for some reason of law the client is not guilty of the offence charged;

(g) may argue that for any other reason not prohibited by (b) or (c) the client should not be convicted of the offence charged; and

(h) must not continue to act if the client insists on giving evidence denying guilt or requires the making of a statement asserting the client’s innocence.  

35. 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:

 80. 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 —

36. 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 –

81. A barrister whose client threatens the safety of any person may, notwithstanding Rule 109, if the barrister believes on reasonable grounds that there is a risk to any person’s safety, advise the police or other appropriate authorities.

Rule 109 concerns non-disclosure of confidential information except with the client’s consent.