Legal Aid, independence and the problem of appearing with instructors
[8 Mar 2013]
In response to recent grants of stay applications by the Supreme Court (see update below from 22 February 2013) Victoria Legal Aid has suggested a compromise, where funding could be applied to two counsel in certain matters. However, once funding has been approved, the second counsel role has, in a number of cases, been taken by the instructing solicitor. In effect, the instructor steps in as counsel’s junior.
This does not address the issues identified by Lasry J. and others in their decisions concerning the need for an instructor to secure a fair trial and may create an ethical issue for members by appearing with a solicitor. I encourage all members who find themselves in this situation to consider the operation of our rules 130 and 131 and if appropriate to seek advice from the Ethics Committee. Our Rules generally prohibit us appearing with solicitors in this way, although there are exceptions. The relevant rules (130 and 131) appear below.
Appearance with Others not in Independent Practice
Subject to these Rules, in order to maintain professional independence, a barrister shall not appear in any court with a person who is not either a barrister or practising as a member of an independent Bar, provided that this rule does not apply to an appearance outside Victoria where:
(a) such other person is a Law Officer of the Crown, the Public Defender or an Assistant Public Defender, the Director of Prosecutions, or the Director of Public Prosecutions; or
(b) in criminal proceedings such other person is a Crown Prosecutor; or
(c) the prior permission of the Ethics Committee has been obtained.
Notwithstanding the provisions of Rule 130, a barrister may, but is not bound to, accept a brief to appear with a practitioner who is not either a barrister or practising as a member of an independent Bar (“the proposed co-advocate”) if:
(a) the member of the Bar considers:
(i) the complexity of the case requires two advocates; and
(ii) the proposed co-advocate has sufficient relevant advocacy experience;
(b) except where the barrister is briefed to prosecute on behalf of the Director of Public Prosecutions for Victoria or the Commonwealth, the barrister has been advised by the instructing solicitor that the instructing solicitor has in writing:
(i) advised the client that the instructing solicitor considers the complexity of the case requires the appearance of two advocates;
(ii) advised the client of the relevant advocacy experience of the proposed co-advocate; and
(iii) given to the client an estimate of the likely cost of engaging either an appropriate barrister or an appropriate member of an independent Bar, and has given to the client a comparison between that estimate and an estimate of the likely cost of engaging the proposed co-advocate; and
(c) there is, in addition to the proposed co-advocate, a solicitor to instruct, as necessary, at the hearing of the case.
I am also aware that on 7 February 2013 VLA informed the Mental Health Legal Centre of its decision to cut funding for MHLC at the end of June 2013, and to redirect those funds to VLA itself.
If MHLC is forced to close its doors, those clients with experiences of mental illness will lose the benefit of its free independent legal advice, advocacy and other programs at a time when law reform in this area will likely result in a growing need for these services.
These cuts underline the critical need for additional funding for Legal Aid in the State and the impact across many Courts and different areas of practice for members of our Bar.
Black Saturday bushfire class action commences
This week, hearings commenced for the class action brought by victims of the Kilmore East bushfire. The hearings occurred in a brand new courtroom in the William Cooper Justice Centre on the corner of William and Lonsdale Streets. The courtroom has capacity for the many barristers who are representing the various parties, as well as room for many spectators. The proceedings are also being broadcast live on the internet, which has enabled the media to show footage of many of our members who are appearing at the trial. The new courtroom is a useful addition to the Supreme Court’s facilities and is welcomed by the Victorian Bar.
Appointment of new President of the National Native Title Tribunal
Attorney-General Mark Dreyfus QC has announced the appointment of Ms Raelene Webb QC as President of the National Native Title Tribunal (NNTT). Ms Webb QC has practised law from Darwin since 1992. She will be appointed for a five year term from 1 April 2013, and will be based in Western Australia. Ms Webb QC was appointed Queen’s Counsel in 2004 and has been the President of the NT Bar, a director of the Law Council and the Vice President of the ABA. She has appeared in significant native title matters as counsel for various governments and for native title applicants. I congratulate Ms Webb on her appointment.
Victorian Bar CPD Conference – last chance to register
Finally, I would like to remind all members of the Bar that the 3rd Bar Conference is to be held on 15 and 16 March 2013. This is an excellent opportunity to meet your CPD obligations before the CPD year ends on 31 March – and members should note the LSB have signalled their intention NOT to renew your practicing certificate unless you have complied. It is also the excellent line up of speakers and topics that will be covered which make this a really worthwhile event. The new Attorney-General, Mark Dreyfus QC, is a recent addition to the list of speakers and Judges have been invited to attend the conference sessions and join us at dinner on Friday night.
I strongly encourage all members of the Bar to attend. The registration form can be found here.