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PRACTICE RULES OF THE VICTORIAN BAR
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RULES OF CONDUCT
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PART I - PRELIMINARY
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Authority
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1.
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These Rules are made on 23 September 1997 by the Bar Council
as practice rules on matters of professional conduct and practice
pursuant to clauses 16.2(b) and 16.3 of the Constitution of the
Victorian Bar and for the purposes of Sections 64 and 72 of the
Legal Practice Act 1996. For those purposes these Rules
replace all previous rulings and practice rules of the Bar Council.
These Rules will come into force on 2 February 1998.
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Object of the Rules
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2.
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The object of these rules is to ensure that all regulated practitioners
of the Bar ("barristers") act in accordance with the
general principles of professional conduct, act independently,
recognise and discharge their obligations in relation to the administration
of justice, and give to clients who choose them services of the
highest standard unaffected by personal interest.
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General Principles of Professional Conduct
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3.
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A barrister must act honestly, fairly and with competence and
diligence in the service of a client, and should accept instructions
and a retainer to act for a client only when the barrister can
reasonably expect to serve the client in that manner and attend
to the work required with reasonable promptness.
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4.
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A barrister must not engage in conduct which is -
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(a)
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dishonest or otherwise discreditable to a barrister;
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(b)
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prejudicial to the administration of justice; or
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(c)
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likely to diminish public confidence in the legal profession
or in the administration of justice or otherwise bring the legal
profession into disrepute.
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Application of Rules
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5.
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Except as is otherwise provided, these Rules apply to and bind
all barristers.
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6.
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A barrister appearing as or providing legal services as a barrister
outside his or her home state shall:
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(a)
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observe so far as is practicable the rules of professional conduct
applicable to local practitioners; and
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(b)
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save as provided in (a), remain subject to these Rules.
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Dispensation from Operation of Rules
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7.
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(a)
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In special circumstances the Bar Council or the Ethics Committee
may grant a dispensation from the operation of a certain rule
or rules by declaring that a barrister (or class of barristers):
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(i)
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is not bound to observe a certain rule or rules; or
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(ii)
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is bound to observe a rule or rules in a modified form;
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and may, in either of the above cases, impose special conditions
upon the barrister (or class of barristers).
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(b)
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Any request for such dispensation should normally be made and
confirmed in writing, and shall set out the reasons for the request.
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(c)
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In cases of urgency an application may be made to the investigations
officer or any member of the Ethics Committee. Any response so
obtained shall operate unless the Ethics Committee or the Bar
Council varies or terminates that response.
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Ethics Committee
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8.
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(a)
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Should a situation concerning a matter of professional conduct
and practice arise not specifically covered by these Rules a barrister
should seek a ruling from the Ethics Committee;
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(b)
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In any case if there is any doubt a barrister should seek a ruling
from the Ethics Committee;
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(c)
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In cases of urgency a ruling may be sought from a member of the
Ethics Committee. Any ruling so obtained shall operate unless
the Ethics Committee varies or terminates that ruling.
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Interpretation
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9.
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(a)
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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 Practice Act and in the general law (including
the law relating to contempt of court).
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(b)
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These Rules should be read and applied so as most effectively
to attain the objects and uphold the values expressed in their
Preamble.
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(c)
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General provisions of these Rules should not be read or applied
in a limited way by reason of any particular or illustrative provisions.
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(d)
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Headings in these Rules shall be read as part of these Rules,
but shall not be used so as to read or apply any of the Rules
in a more limited way than would have been so if the headings
were not part of the Rules.
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(e)
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Expressions used in these Rules which are also used in the Act
have the same meanings as they are used in the Act, unless the
context requires otherwise.
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(f)
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Unless the context requires otherwise, the following expressions
are defined as follows when used in these Rules:
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"Bar"
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means the Victorian Bar Inc.
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"Bar Council"
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means The Victorian Bar Council, a committee established under
the Constitution of the Victorian Bar Inc.
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"Barrister"
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means a regulated practitioner of The Victorian Bar Inc.
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"case"
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means the litigation or proceedings in which the barrister in
question is briefed to appear, or the dispute in which the barrister
is advising, as the case may be.
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"client"
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means the client of the practitioner in question and includes
a professional acting as such and includes those officers, servants
or agents of a client, which is not a natural person, who are
responsible for or involved in giving instructions on behalf of
the client.
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"compromise"
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includes any form of settlement of the case, whether pursuant
to a formal offer under the rules or procedure of a court, or
otherwise.
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"court"
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means any body described as such and all other judicial tribunals,
all statutory tribunals and disciplinary tribunals and all statutory
or Parliamentary investigations and inquiries, Royal Commissions,
arbitrations and mediations.
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"criminal proceedings"
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includes disciplinary proceedings, in which context other expressions
appropriate to criminal proceedings include corresponding meanings
appropriate to disciplinary proceedings and in particular "a serious
criminal offence" includes a disciplinary shortcoming which, if
proved, involves the serious possibility of suspension or deregistration
(or the equivalent).
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"current proceedings"
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means proceedings which have not been determined, including proceedings
in which there is still the real possibility of an appeal or other
challenge to a decision being filed, heard or decided.
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"ethics committee"
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means the committee so described and appointed by the Bar Council
pursuant to clause 15 of the Constitution.
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"Executive Director"
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means the Executive Director of the Victorian Bar Inc.
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"fee"
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means legal costs within the meaning of the Legal Practice Act
1996.
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"forensic judgments"
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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, or in criminal proceedings
as to a plea, but do include advice given to assist the client
or the instructing solicitor to make such decisions.
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"home State"
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means Victoria.
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"instructing
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means the solicitor from whom the barrister
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solicitor"
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in question has accepted a brief or who is instructing that barrister
in that brief, as the case may be.
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"insurance company"
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includes any entity, whether statutory or otherwise, which performs
the function of indemnifying in any way civil defendants.
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"Judge"
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includes, as the context requires, a Magistrate, Registrar, Arbitrator,
member of a tribunal and other judicial or quasi-judicial officer.
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"legal advice"
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includes assistance at or presiding over meetings.
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"opponent"
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means the legal practitioner appearing for the party opposed
to the client, or the party opposed to the client if that party
is unrepresented.
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"order"
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includes a judgment, decision or determination.
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"professional"
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when used as a noun means a person actively engaged in an occupation
generally recognised as being a profession, and includes accountants,
architects, engineers, surveyors, town planners and valuers.
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"prosecutor"
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means a barrister who appears for the complainant or Crown in
criminal proceedings.
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"regulated practitioner"
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means a legal practitioner or a registered interstate practitioner
who has been allocated to the Bar by the Legal Practice Board
pursuant to Part 2 of the Legal Practice Act 1996.
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"representative"
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means the barrister or, if no barrister, the solicitor who is
retained by the party in question.
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PART II - ADVOCACY RULES
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Duty to Client
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10.
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A barrister has the privilege of asserting and defending a client's
rights and of protecting the client's liberty or life by the free
and unfettered statement of every fact and the use of every argument
and observation that can legitimately lead to that end according
to the principles and practice of the law.
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11.
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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.
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12.
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A barrister must seek to assist the client to understand the
issues in the case and the client's possible rights and obligations,
if the barrister is instructed to give advice on any such matter,
sufficiently to permit the client to give proper instructions,
particularly in connection with any compromise of the case.
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13.
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A barrister shall not give an undertaking to the court on behalf
of a solicitor or lay client without the express authority of
the person concerned.
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14.
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A barrister must take all reasonable and practicable steps to
ensure that professional commitments are fulfilled, or that early
notice is given if they cannot be fulfilled.
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15.
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A barrister who has accepted a brief to appear alone at a hearing
and has not returned the brief shall be present in court ready
to represent the client on each occasion on which the hearing
proceeds. Where two or more barristers are briefed to appear the
senior of them shall ensure that one at least of them shall be
so present in court.
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Duty to Court, Conduct in Court
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16.
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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 appropriate
consideration of the client's and the instructing solicitor's
desires where practicable.
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17.
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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:
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(a)
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confine any hearing to those issues which the barrister believes
to be the real issues;
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(b)
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present the client's case as quickly and simply as may be consistent
with its robust advancement; or
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(c)
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inform the court of any persuasive authority against the client's
case.
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18.
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A barrister must not make submissions or express views to a court
on any material evidence or material issue in the case in terms
which convey or appear to convey the barrister's opinion on the
merits of that evidence or issue.
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19.
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A barrister must not knowingly make a misleading statement to
a court on any matter.
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20.
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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.
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21.
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A barrister will not have made a misleading statement to a court
simply by failing to correct an error on any matter stated to
the court by the opponent or any other person.
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22.
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A barrister seeking any interlocutory relief in an ex parte application
must disclose to the court all matters which:
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(a)
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are within the barrister's knowledge;
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(b)
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are not protected by legal professional privilege; and
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(c)
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the barrister has reasonable grounds to believe would support
an argument against granting the relief or limiting its terms
adversely to the client.
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23.
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A barrister who has knowledge of matters which are within Rule
22:
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(a)
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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 22; and
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(b)
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if the client does not waive the privilege as sought by the barrister:
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(i)
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must inform the client of the client's responsibility to authorise
such disclosure and the possible consequences of not doing so;
and
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(ii)
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cease to act in relation to the application.
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24.
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A barrister must, at an appropriate time in the hearing of the
case and if the court has not yet been informed of that matter,
inform the court of:
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(a)
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any binding authority;
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(b)
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any authority decided by an Australian appellate Court;
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(c)
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any authority on the same or materially similar legislation as
that in question in the case, including any authority decided
at first instance in the Federal Court or a Supreme Court, which
has not been disapproved; or
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(d)
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any applicable legislation;
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which the barrister has reasonable grounds to believe to be directly
in point against the client's case.
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25.
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A barrister need not inform the court of matters within Rule
24 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.
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26.
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A barrister who becomes aware of a matter within Rule 24 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
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(a)
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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
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(b)
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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.
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27.
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A barrister need not inform the court of any matter otherwise
within Rule 24 which would have rendered admissible any evidence
tendered by the prosecution which the court has ruled inadmissible
without calling on the defence.
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28.
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A barrister must inform the court in civil proceedings of any
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 while at the same time respecting the confidences
and the interests of the client as far as that is possible.
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29.
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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:-
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(a)
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has lied in a material particular to the court or has procured
another person to lie to the court; or
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(b)
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has falsified or procured another person to falsify in any way
a document which has been tendered; or
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(c)
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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:
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(i)
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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
or suppression;
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(ii)
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must promptly inform the court of the lie or falsification or
suppression upon the client authorising the barrister to do so;
but
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(iii)
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must not otherwise inform the court of the lie or falsification
or suppression.
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30.
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A barrister whose client informs the barrister that the client
intends to disobey a court's order must:
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(a)
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advise the client against that course and warn the client of
its dangers;
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(b)
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not advise the client how to carry out or conceal that course;
but
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(c)
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not inform the court or the opponent of the client's intention
unless:
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(i)
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the client has authorised the barrister to do so beforehand;
or
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(ii)
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the barrister believes on reasonable grounds that the client's
conduct constitutes a threat to any person's safety.
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31.
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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:
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(a)
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are reasonably justified by the material then available to the
barrister;
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(b)
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are appropriate for the robust advancement of the client's case
on its merits;
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(c)
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are not made principally in order to harass or embarrass the
person; and
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(d)
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are not made principally in order to gain some collateral advantage
for the client or the barrister or the instructing solicitor out
of court.
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32.
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When drawing or settling a pleading or affidavit, a barrister
shall not include an allegation which is not supported by facts
contained in instructions, or by facts which the barrister otherwise
reasonably believes to exist.
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33.
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Where a barrister is instructed to draw a subsequent pleading
in an action and finds that the client has no answer to the allegations
made in the earlier pleading, it is permissible to settle a pleading
which merely denies, or does not admit, those allegations; providing
that nothing in this rule permits drawing or settling a pleading
which is to be verified on affidavit otherwise than in accordance
with instructions.
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34.
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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:
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(a)
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factual material already available to the barrister provides
a proper basis for the allegation if it is made in a pleading;
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(b)
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the evidence in which the allegation is made, if it is made in
evidence, will be admissible in the case when it is filed; and
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(c)
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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.
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35.
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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
be presented to support the client's case.
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36.
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No barrister is bound to withdraw any charge which is the necessary
outcome of material facts sworn to by or on behalf of a client,
or is a fair inference from the evidence in the case, unless expressly
instructed to do so by the client.
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37.
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In any proceedings, a barrister shall not permit himself or herself
to be made the instrument by which publicity is obtained for allegations
which are scandalous or calculated to vilify, insult or injure
the commercial or personal reputation of another person or corporation.
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38.
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A barrister must not cross-examine so as to suggest criminality,
fraud or other serious misconduct on the part of any person unless:
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(a)
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the barrister believes on reasonable grounds that the material
already available to the barrister provides a proper basis for
the suggestion;
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(b)
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in cross-examination going to a fact in issue, the suggestion
is part of the case for the client; or
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(c)
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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.
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39.
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A barrister may regard the opinion of the instructing solicitor
that material which appears to support a suggestion within Rule
38 is itself credible as a reasonable ground for holding the belief
required by Rule 38(a).
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40.
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A barrister must make reasonable inquiries to the extent which
is practicable before the barrister can have reasonable grounds
for holding the belief required by Rule 38(a), unless the barrister
has received and accepted an opinion from the instructing solicitor
within Rule 39.
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41.
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A barrister shall not in questioning a witness use any document
or thing so as to induce a belief in the mind of a witness, jury
or court that there is documentary information to support the
substance of the suggestion conveyed by a question when the document
or thing does not support such suggestion.
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42.
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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:
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(a)
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the barrister believes on reasonable grounds that the evidence
in the case provides a proper basis for the suggestion;
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(b)
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there are reasonable grounds for believing that such matters
are both well founded and also relevant; and
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(c)
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the imputations are put in language which is no stronger than
the needs of the case require.
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43.
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A barrister who has instructions which justify submissions for
the client 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
clientís case.
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44.
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(a)
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Under no circumstances shall a barrister advise or suggest to
a witness that false evidence should be given.
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(b)
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A barrister shall not coach a witness by advising what answers
the witness should give to questions which might be asked.
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45.
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A barrister will not have breached Rule 44 by expressing a general
admonition to tell the truth or by questioning and testing in
conference the version of evidence to be given by a prospective
witness, including drawing the witness's attention to inconsistencies
or other difficulties with the evidence, but must not coach or
encourage the witness to give evidence different from the evidence
which the witness believes to be true.
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46.
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A barrister must not confer with any witness (including a party
or client) called by the barrister on any matter related to the
proceedings while that witness remains under cross-examination,
unless:
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(a)
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the cross-examiner has consented beforehand to the barrister
doing so; or
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(b)
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the barrister:
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(i)
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believes on reasonable grounds that special circumstances (including
the need for instructions on a proposed compromise) require such
a conference; and
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(ii)
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has, if possible, informed the cross-examiner beforehand of the
barrister's intention to do so; and
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(iii)
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otherwise does inform the cross-examiner as soon as possible
of the barrister having done so.
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47.
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A barrister must not take any step to prevent or discourage prospective
witnesses or witnesses from conferring with the opponent or being
interviewed by or on behalf of any other person involved in the
proceedings.
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48.
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A barrister will not have breached Rule 47 simply by telling
a prospective witness or a witness that the witness need not agree
to confer or to be interviewed.
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Communications
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49.
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threaten the institution of criminal or disciplinary proceedings
against the other person in default of the person's satisfying
a concurrent civil liability to the barrister's client.
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50.
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A barrister must not knowingly make a false statement to the
opponent concerning the facts of, evidence in support of or law
applicable to the clientís case.
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51.
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A barrister must take all necessary steps to correct any false
statement of the kind referred to in Rule 50 unknowingly made
by the barrister to the opponent as soon as possible after the
barrister becomes aware that the statement was false.
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52.
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A barrister must not deal directly with the opponentís solicitor
or client other than through the barrister's own instructing solicitor
unless:
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(a)
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the opponent has previously consented;
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(b)
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the barrister believes on reasonable grounds that:
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(i)
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the circumstances are so urgent as to require the barrister to
do so; and
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(ii)
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the dealing would not be unfair to the opponent's client; or
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(c)
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the substance of the dealing is solely to inquire whether the
opposing party is represented and, if so, by whom.
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53.
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A barrister must not confer with or deal directly with the party
opposed to his or her client unless:
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(a)
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the party, not being indemnified by an insurance company which
is actively engaged in contesting the proceedings, is unrepresented
and has signified willingness to that course; or
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(b)
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the party, being indemnified by an insurance company which is
actively engaged in contesting the proceedings, is otherwise unrepresented
and the barrister:
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(i)
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has no reasonable grounds to believe that any statements made
by the party to the barrister may harm the party's interests under
the insurance policy; or
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(ii)
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has reasonable grounds for the belief referred to in (i) but
has clearly informed the party beforehand of that possibility;
or
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(c)
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the party, being indemnified by an insurance company which is
actively engaged in contesting the proceedings, is personally
represented but not in the case and the barrister:
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(i)
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has notified the party's representative of the barrister's intention
to do so; and
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(ii)
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has allowed enough time for the party to be advised by the party's
representative.
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54.
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A barrister must not, outside an ex parte application or a hearing
of which the opponent has had proper notice, communicate in the
opponentís absence with the court concerning any matter of substance
in connection with current proceedings unless:
|
| |
(a)
|
the court has first communicated with the barrister in such a
way as to require the barrister to respond to the court; or
|
| |
(b)
|
the opponent has consented beforehand to the barrister dealing
with the court in a specific manner notified to the opponent by
the barrister and has an opportunity to participate.
|
|
55.
|
A barrister must promptly tell the opponent what passes between
the barrister and a court in a communication referred to in Rule
54.
|
|
56.
|
A barrister must not raise any matter with a court in connection
with current proceedings on any occasion to which the opponent
has consented under Rule 54(b), other than the matters specifically
notified by the barrister to the opponent when seeking the opponent's
consent.
|
|
57.
|
A barrister shall not disclose to the court, whether in 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; or
|
| |
(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.
|
|
Media
|
|
58.
|
A barrister must not take any steps to procure or to encourage
another person to procure the attendance of the media at any proceedings
in which he or she is appearing as counsel or publish or take
any step towards the publication or broadcasting of any material
concerning current proceedings in which the barrister is appearing
or has appeared, unless:
|
| |
(a)
|
the barrister is merely supplying, with the consent of the instructing
solicitor or the client, as the case may be:
|
| |
|
(i)
|
copies of pleadings or court processes in their current form,
which have been filed, and which have been served in accordance
with the court's requirements;
|
| |
|
(ii)
|
copies of affidavits or witness statements, which have been read,
tendered or verified in open court, clearly marked so as to show
any parts which have not been read, tendered or verified or which
have been disallowed on objection;
|
| |
|
(iii)
|
copies of the transcript of evidence given in open court if permitted
by copyright and clearly marked so as to show any corrections
agreed by the other parties or directed by the court;
|
| |
|
(iv)
|
copies of exhibits admitted in open court and without restriction
on access; or
|
| |
|
(v)
|
copies of written submissions which have been given to the court
and which have been served on all other parties; or
|
| |
(b)
|
the barrister, with the consent of the instructing solicitor
or the client, as the case may be, is answering unsolicited questions
from journalists concerning proceedings in which there is no possibility
of a jury ever hearing the case or any re-trial and:
|
| |
|
(i)
|
the answers are limited to information as to the identity of
the parties or of any witness already called, the nature of the
issues in the case, the nature of the orders made judgment given
including any reasons given by the court or the clients intention
as to further steps in the case;
|
| |
|
(ii)
|
the answers are accurate and uncoloured by comment or unnecessary
description; and
|
| |
|
(iii)
|
the answers do not involve statements of law, fact or opinion
which might reasonably be regarded as contentious on any matters
relevant to the case;
|
| |
|
(iv)
|
it is made clear that the information is not to be publicly described
as coming from the barrister.
|
|
59.
|
A barrister will not have breached Rule 58 simply by advising
the client about whom there has been published a report relating
to the case and who has sought the barrister's advice in relation
to that report that the client may take appropriate steps to see
that relevant, accurate and balanced material as to the client's
own position is fairly presented for publication.
|
|
60.
|
A barrister may advise a client against whom a conviction has
been recorded or order made, which conviction or order has been
published in the media, that the client should notify the media
that an appeal has been lodged or a stay granted in respect of
such conviction or order.
|
|
61.
|
A barrister may not write for publication broadcast by radio
or television, publish in a film or otherwise cause or permit
to be published any particulars of any matters on which the barrister
has been or is currently engaged as counsel, unless this can be
done without disclosing confidential information and without giving
publicity to his or her own part in the matter.
|
|
Confidentiality and Conflicts
|
|
62.
|
A barrister's obligation to maintain the confidentiality of a
client's affairs is not limited to information which might be
protected by legal professional privilege, and is a duty inherent
in the fiduciary relationship between the barrister and client.
|
|
63.
|
A barrister must not disclose (except as compelled by law) or
use in any way whether during or after the cessation of the relationship
of barrister and client, confidential information obtained by
the barrister concerning any personsí business or personal affairs
unless or until:
|
| |
(a)
|
the information has been published so as to become public knowledge;
|
| |
(b)
|
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
|
| |
(c)
|
the person has consented to the barrister disclosing or using
the information generally or on specific terms.
|
|
64.
|
A barrister must not disclose (except as compelled by law) or
use confidential information under Rule 63(c) in any way other
than as permitted by the specific terms of the person's consent.
|
|
65.
|
A barrister will not have breached Rules 63 and 64 simply by
showing briefs to a reader or to another barrister doing work
as permitted by Rule 115 or to another barrister for the purpose
of obtaining assistance, so long as the barrister has reminded
the pupil or the other barrister of barristers' duties of confidentiality
including Rules 63 and 64.
|
|
66.
|
A barrister who is shown a brief pursuant to rule 65 is bound
by the same duties of confidentiality which bind the barrister
whose brief it is, including the duties imposed by Rules 63 and
64.
|
|
67.
|
A barrister who has accepted a brief must return the brief 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 helpful to the client's case
or to the advancement of the client's interests or material to
the proceedings, being information which the barrister is prohibited
from disclosing or using by Rules 63, 64 or 66, unless the person
entitled to the confidentiality consents to the barrister disclosing
or using the information as the barrister thinks fit.
|
|
68.
|
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
63 would apply; or
|
| |
(b)
|
in other cases, one or more of the clients:
|
| |
|
(i)
|
giving preference to the earliest brief if the barrister was
briefed at different times; and
|
| |
|
(ii)
|
so as to remove that possibility of conflict.
|
|
69.
|
A barrister who, during the hearing of the case, becomes aware
that the interests of the clients or some of them do or may, as
a real possibility, conflict, must return the brief for:
|
| |
(a)
|
all the clients in the case of confidentiality to which Rule
63 would apply; or
|
| |
(b)
|
in other cases, one or more of the clients:
|
| |
|
(i)
|
giving preference to the earliest brief if the barrister was
briefed at different times; and
|
| |
|
(ii)
|
so as to remove that possibility of conflict.
|
|
70.
|
A barrister need not return any briefs to appear under Rules
68 or 69, if the barrister has informed the instructing solicitor
or the clients, as the case may be, of the barrister's view as
to the clients' conflicting interests, and the instructing solicitor
or the clients, as the case may be, inform the barrister that
all the clients nonetheless wish the barrister to continue to
appear for them.
|
|
71.
|
Where it is necessary for the proper examination of a complaint
made against a barrister, a barrister may disclose to the Ethics
Committee or a disciplinary tribunal information which would otherwise
be confidential within the meaning of these Rules. (1)
|
|
72.
|
(a)
|
A barrister must not in any dealings with a client:
|
| |
|
(i)
|
allow the interests of the barrister or a member of the barrister's
immediate family to conflict with those of the client;
|
| |
|
(ii)
|
exercise any undue influence intended to dispose the client to
benefit the barrister in excess of the barrister's fair remuneration
for the legal services provided to the client.
|
| |
(b)
|
a barrister must not accept instructions to act for a person
in any proceedings or transaction affecting or related to any
legal or equitable right or entitlement or interest in property,
or continue to act for a person engaged in such proceedings or
transaction when the barrister is, or becomes, aware that the
person's interest in the proceedings or transaction is, or would
be, in conflict with the barrister's own interest or the interest
of a member of the barrister's immediate family.
|
|
73.
|
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 in
writing; and
|
| |
(b)
|
if the instructing solicitor does not agree to advise the client
of the barrister's belief, seek to advise the client in conference
in the presence of the instructing solicitor of the barrister's
belief;
|
| |
provided that if such a conference has not or cannot be held,
or if the solicitor refuses to pass on the advice, the barrister
should consult the Ethics Committee for the appropriate procedure
to be followed.
|
|
Relations with Bar Council
|
|
74.
|
(a)
|
A barrister shall respond forthwith to any requirement from any
disciplinary body, the Legal Ombudsman, the Ethics Committee,
or from the Bar Council, for comments or information relating
to a complaint or relating to the barrister's conduct;
|
| |
(b)
|
a barrister shall reply to correspondence from the Ethics Committee
and the Bar Council when asked to do so;
|
| |
(c)
|
if required to do so a barrister shall attend any inquiry or
proceedings of the Ethics Committee, the Bar Council, or any disciplinary
body.
|
|
75.
|
A barrister convicted of:
|
| |
(a)
|
an indictable offence; or
|
| |
(b)
|
a criminal offence which may bring the profession into disrepute,
|
| |
must immediately report the fact to the Ethics Committee.
|
|
76.
|
A barrister who is found to have committed a disciplinary offence
must advise the Governing Bodies of the ABA of which the barrister
is a member.
|
|
77.
|
A barrister shall pay in the manner and within the time required
the amount of any fine or order for compensation imposed on him
or her for a disciplinary offence.
|
|
Insurance
|
|
78.
|
No barrister shall engage in legal practice unless he or she
maintains professional indemnity insurance in accordance with
Part 8 of the Legal Practice Act 1996.
|
|
Facilities
|
|
79.
|
The general purposes of Rule 80 are:-
|
|
(a)
|
|
to ensure that Barristers conduct their practices in such a manner
as to enable them properly to discharge their professional duties
to their clients, their instructing solicitors, and the Court;
|
|
(b)
|
|
to ensure that Barristers conduct their practices in such a manner
as not to bring them or the Victorian Bar into disrepute.
|
|
80.
|
A Barrister must conduct his or her practice from such chambers
and by the use of such facilities as are reasonably necessary
to enable him or her to discharge his or her duties and obligations
properly and in a professional manner, having regard to the nature,
size and circumstances of his or her practice.
|
|
81.
|
For the purposes of providing guidance in respect of the requirements
of Rule 80, the Bar Council may, from time to time, issue guidelines,
compliance with which shall be taken to meet those requirements.
|
|
Impugning the Dignity of Profession
|
|
82.
|
A barrister shall not publish, orally, in writing or otherwise,
an opinion of the professional characteristics of fellow barristers
or any of them in such a way or in such circumstances as to impugn
the dignity and high standing of the profession.
|
|
Miscellaneous
|
|
83.
|
A barrister must not in the presence of any of the parties or
solicitors deal with a court, or deal with any legal practitioner
appearing before the barrister when the barrister is a referee,
arbitrator or mediator, on terms of informal personal familiarity
which may reasonably give the appearance that the barrister has
special favour with the court or towards the legal practitioner.
|
|
84.
|
Where a barrister wishes to make representations to the effect
that a judge should not sit on a case by reason of bias, interest
or the like, then (whether such representations are to be made
directly or indirectly to the judge, or to some other person having
influence or control over the matter), he or she should give notice
to all other parties interested and afford them a reasonable opportunity
to make representations in the matter.
|
| |
If a barrister intends to rely on an unreported decision then,
before doing so, it should be brought to the attention of opposing
counsel, and if necessary a copy supplied in sufficient time for
proper consideration of it.
|
| |
|
PART III - BRIEFS AND RETAINERS
|
|
Cab-rank Principle
|
|
86.
|
A barrister must accept a brief from a solicitor to appear before
a court, to advise or to draw pleadings or any other document
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 to accept
or retain the brief under Rules 92, 94, 95, 96, 98, 99, 100 or
101.
|
|
87.
|
A barrister who is generally available to accept a brief shall
not discriminate, in any way, for or against a client, or class
of clients.
|
|
88.
|
A barrister must not set the level of an acceptable fee, for
the purposes of Rule 86(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.
|
|
89.
|
(a)
|
Queen's Counsel may accept instructions in any matter without
a junior.
|
| |
(b)
|
Queen's Counsel shall refuse to accept instructions in a matter
without a junior if the interests of the client require that more
than one counsel be instructed.
|
| |
(c)
|
Nothing in these Rules shall be taken to oblige a Queen's Counsel
to accept a brief without a junior.
|
|
90.
|
(a)
|
A barrister shall not impose as a condition of acceptance of
a brief that a particular barrister be briefed as a leader or
junior in the matter or proceedings but:
|
| |
|
(i)
|
it is not improper for a barrister to decline a brief in any
matter on the ground that the junior briefed or to be briefed
in the matter will not afford such assistance as he or she considers
desirable in all the circumstances;
|
| |
|
(ii)
|
save where a brief has been declined under (i), it is not improper
for a barrister to indicate the name of any other barrister or
the names of other barristers (whether junior or senior) whom
he or she considers that it would be desirable to be briefed along
with or in place of the original barrister;
|
| |
(b)
|
The above sub-rule does not prevent a barrister recommending
other barristers to a solicitor who asks for such advice.
|
|
Requirement of Separate Briefs
|
|
91.
|
(a)
|
Subject to this rule, a barrister who has been or is to be briefed
to appear in separate proceedings must have a separate brief separately
marked in respect of each proceeding.
|
| |
(b)
|
Where a barrister is briefed to negotiate on behalf of several
plaintiffs in respect of their actions against a single defendant,
he or she may accept a single brief to negotiate on behalf of
all those plaintiffs and, subject to the agreement of the barrister,
such brief may be marked with a single or composite fee.
|
| |
(c)
|
Where a barrister is briefed by the same solicitor or firm of
solicitors to appear in two or more related proceedings, he or
she may accept a single brief to appear in such proceedings and,
subject to the agreement of the barrister, such brief may be marked
with a single or composite fee.
|
| |
(d)
|
For the purpose of this rule, proceedings are related proceedings
where:
|
| |
|
(i)
|
each of the proceedings is brought by or against the same person,
and the proceedings are likely to be heard either concurrently
or one immediately after the other; or
|
| |
|
(ii)
|
the same issues or substantially the same issues arise for determination
in each of the proceedings and the proceedings are likely to be
heard either concurrently or one immediately after another; or
|
| |
|
(iii)
|
the barrister is briefed for a prosecuting authority or informant,
and the proceedings are likely to be heard either concurrently
or one immediately after another; or
|
| |
|
(iv)
|
the barrister is briefed for a complainant or a number of complainants
in simple debt collecting cases, and the proceedings are listed
for hearing on the one day.
|
|
Briefs which must be Refused (2)
|
|
92.
|
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
party 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 party entitled to the confidentiality has not consented to
the barrister using the information as the barrister thinks fit
in the case;
|
| |
(b)
|
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;
|
| |
(c)
|
the barrister has reasonable grounds to believe that the barrister
may, as a real possibility, be a witness in the case;
|
| |
(d)
|
the barrister was a witness in the court below in the case of
an appellate brief;
|
| |
(e)
|
the barrister has reasonable grounds to believe that the barrister's
own personal or professional conduct may be attacked in the case;
|
| |
(f)
|
the barrister has a material financial or property interest in
the outcome of the case, apart from the prospect of a fee;
|
| |
(g)
|
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;
|
| |
(h)
|
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;
|
| |
(i)
|
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) or before a judge whose relationship
with the barrister is such as to make such appearance undesirable
- unless, upon discovering that circumstance, the barrister cannot
retire without jeopardising the client's interest;
|
| |
(j)
|
the brief is to appear before a court of which the barrister
was formerly a member or judicial registrar (other than in an
acting capacity), or before a court from which appeals lay to
a court of which the barrister was formerly a member (except the
Federal Court of Australia in case of appeals from the Supreme
Court of any State or Territory), and the appearance would occur:
|
| |
|
(i)
|
within 2 years after the barrister ceased to be a member of the
court in question, if the barrister was a member of the court
for less than 2 years;
|
| |
|
(ii)
|
within a period after the barrister ceased to be a member of
the court in question equivalent to the period for which the barrister
was a member of the court, if the barrister was a member of the
court for 2 years or more but less than 5 years; or
|
| |
|
(iii)
|
within 5 years after the barrister ceased to be a member of the
court in question, if the barrister was a member of the court
for 5 years or more;
|
| |
|
provided that a barrister who was formerly a member of any other
tribunal shall not practise before it without the permission of
the Governing Body. That permission may be given on any desirable
terms and conditions as the Governing Body shall see fit;
|
| |
(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)
|
where the barrister has already advised or drawn pleadings and
is then offered a brief from the other side in the matter, unless
the first client, on being informed of the offer of the brief
by the other side, states that there is no objection to the barrister
accepting the brief;
|
| |
(m)
|
where by reason of any connection with the client, it would be
difficult for the barrister to maintain professional independence;
|
| |
(n)
|
where the complexity of the matter is such that the barrister
considers it to be beyond his or her capacity;
|
| |
(o)
|
where the barrister has already discussed in any detail, even
on an informal basis, with another party to the proceedings the
facts out of which the proceedings arise, except with the latter's
consent;
|
| |
(p)
|
with respect to the internal affairs of a company which the barrister
has investigated under statutory provisions at any time within
the preceding six years;
|
| |
(q)
|
where to do so would compromise the barrister's independence,
involve the barrister in a conflict of interest, or otherwise
be detrimental to the administration of justice;
|
| |
(r)
|
where the barrister is a member of a local council and the brief
relates to a case in which the affairs of the council are likely
to arise in any material manner;
|
| |
(s)
|
where the barrister is a member of a local council and the brief
is to appear in any court for or against such council;
|
| |
(t)
|
where the barrister is a director of a company or a member of
the committee or council of an organisation and the brief is for
or against the company or organisation (whether to appear, advise,
settle documents or otherwise): provided that such barrister may
give legal advice at board meetings or committee meetings or council
meetings while not accepting any remuneration in respect of such
advice beyond that payable in the capacity of director or committee
or council member;
|
| |
(u)
|
where the barrister is a member of parliament or of a local authority
and is pursuing or has pursued a matter by political action and
the brief relates to the same matter.
|
| |
(v)
|
for the plaintiff against a defendant who is insured by a company
of which the barrister is a director;
|
| |
(w)
|
for a defendant to an originating summons issued by trustees
where the barrister holds a brief for the trustees, notwithstanding
that they are adopting an impartial attitude and are not opposed
to the barrister holding the second brief;
|
| |
(x)
|
save where the refusal or return of the brief would not be proper
having regard to the whole of the circumstances, where a conference
with the lay client or a witness is necessary for the proper preparation
for or conduct of the proceedings, but the barrister's instructing
solicitor by endorsement on the brief or otherwise has refused
the opportunity for such a conference;
|
| |
(y)
|
on an appeal from a decision in a proceeding in which the barrister
has been briefed, without first giving the party by whom he or
she was briefed in such proceeding the opportunity of delivering
a brief to him or her for such appeal.
|
|
93.
|
A barrister need not refuse a brief to appear before a court
notwithstanding the application of Rules 92(c), (d) or (e) if:
|
| |
(a)
|
the barrister believes on reasonable grounds that:
|
| |
|
(i)
|
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
|
| |
|
(ii)
|
those allegations can be met without materially diminishing the
barrister's disinterestedness; and
|
| |
(b)
|
a member of the Ethics Committee approves of the barrister accepting
the brief after the barrister has informed that member of the
circumstances.
|
|
94
|
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.
|
|
95.
|
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 unless:
|
| |
(a)
|
the person offering the later brief has expressly permitted the
barrister to do so; and
|
| |
(b)
|
the instructing solicitor in the earlier brief has been informed
beforehand of the barrister's intention to accept the later brief.
|
|
Briefs which may be Refused
|
|
96.
|
A barrister may refuse to accept or retain a brief from a solicitor
to appear before a court if:
|
| |
(a)
|
the barrister considers on reasonable grounds that the time or
effort required for the brief threatens seriously to prejudice
the barrister's practice or other professional or personal engagements;
|
| |
(b)
|
the barrister has reasonable grounds to doubt that the fee will
be paid reasonably promptly or in accordance with any agreement
as to costs made with the solicitor or client;
|
| |
(c)
|
the instructing solicitor does not agree to be responsible for
the payment of the barrister's fee;
|
| |
(d)
|
the brief may, as a real possibility, require the barrister to
cross-examine or criticise a friend or relation;
|
| |
(e)
|
the solicitor does not agree to a request by the barrister that
appropriate attendances by the instructing solicitor, solicitor's
clerk or client representative will be arranged from time to time
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 or compromise
negotiations; and
|
| |
|
(iv)
|
protecting the client or the barrister from any disadvantage
or inconvenience which may, as a real possibility, otherwise be
caused;
|
| |
(f)
|
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;
|
| |
(g)
|
the barrister, being of Queen's Counsel, considers on reasonable
grounds that the case does not require the services of Queen's
Counsel;
|
| |
(h)
|
where the fee offered to the barrister or marked on the brief
is not the barristerís usual fee for a matter of the kind to which
the brief relates; or
|
| |
(i)
|
where past experience of the particular client or an essential
witness is such as to give good reason to believe and the barrister
does in fact believe that his or her performance in the conduct
of the proceedings would be adversely affected;
|
| |
(j)
|
where the barrister considers that having regard to other commitments,
professional or otherwise, he or she may have insufficient time
to give proper attention to the brief;
|
| |
(k)
|
where the barrister has some special knowledge of the other party's
case by reason of participation in some other litigation;
|
| |
(l)
|
where there is a direct or indirect personal relationship between
the barrister and a party or a witness in the prospective proceedings
which is sufficient to cause embarrassment to the barrister were
the brief to be accepted;
|
| |
(m)
|
where the barrister has been a witness in related proceedings;
|
| |
(n)
|
where the barrister knows or has reason to believe that his or
her own professional conduct is likely to be impugned in relation
to matters out of which the action arises;
|
| |
(o)
|
where the barrister finds his or her own professional conduct
being impugned in the course of the proceedings to which the brief
relates, unless in his or her opinion a retirement therefrom at
that stage would jeopardise the interests of the client;
|
| |
(p)
|
in such other circumstances as may be permitted by the Ethics
Committee.
|
|
97.
|
A barrister may regard the current listing of a solicitor by
the Bar Council as one who has failed to pay another barrister's
fee without reasonable excuse as a reasonable ground for the doubt
referred to in Rule 96(b).
|
|
98.
|
A barrister may return a brief if, after acceptance of the brief:
|
| |
(a)
|
the barrister's request that appropriate attendances by the instructing
solicitor, solicitor's clerk or client representative will be
arranged from time to time 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 or compromise
negotiations; or
|
| |
|
(iv)
|
protecting the client or the barrister from any disadvantage
or inconvenience which may, as a real possibility, otherwise be
caused;
|
| |
|
has been refused;
|
| |
(b)
|
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;
or
|
| |
(c)
|
fees have not been paid reasonably promptly or in accordance
with any agreement as to costs, and have remained unpaid after
reasonable notice by the barrister to the instructing solicitor
or client, as the case may be, of the barrister's intention to
return the brief for that reason.
|
|
99.
|
A barrister who has reasonable grounds to believe that there
is a real possibility that the barrister may cease to be solely
a disinterested advocate by becoming also a witness in the case
or a defender of the barrister's own personal or professional
conduct against criticism must return the brief as soon as it
is possible to do so without unduly endangering the client's interests,
unless:
|
| |
(a)
|
the barrister believes on reasonable grounds that:
|
| |
|
(i)
|
allegations which involve the barrister in that way have been
raised in order to remove the barrister from the case; and
|
| |
|
(ii)
|
those allegations can be met without materially diminishing the
barrister's disinterestedness; and
|
| |
(b)
|
a member of the Ethics Committee approves of the barrister keeping
the brief after the barrister has informed that member of the
circumstances.
|
|
100.
|
A barrister must return a brief to appear in a contested hearing
before the barrister's parent, sibling, spouse or child or a member
of the barrister's household, unless:
|
| |
(a)
|
the barrister learns of the identity of the person or persons
constituting the court so close to the hearing date that return
of the brief would not give another legal practitioner enough
time to take over the case properly before the hearing; and
|
| |
(b)
|
the barrister has sought to draw the circumstances to the court's
attention so as to permit the constitution of the court to be
changed.
|
|
101.
|
A barrister must not return 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 and Rule 105.
|
|
102.
|
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, as the case may be, of the circumstances
in which the barrister wishes to return the brief and of the terms
of this Rule and Rule 105.
|
|
103.
|
This rule applies subject to exceptional circumstances, and subject
to any special agreement or reservation to the contrary made with
the solicitor who has delivered the brief which would, pursuant
to this rule, be retained. Where it appears to the barrister holding
two or more briefs that the hearing of proceedings to which they
relate may clash in point of time, the barrister shall determine
which brief to retain. In so doing the barrister shall take into
account the following circumstances and generally accord weight
to them in the order in which they appear below:
|
| |
(a)
|
whether the brief relates to a proceeding which is and will be
part heard and running from day to day both at the time when the
likelihood of the clash arises and at the time of the clash;
|
| |
(b)
|
whether the brief relates to a part heard proceeding in which
the barrister appeared at the previous hearing or, if there are
two or more such briefs, which relates to the proceedings for
which the date for the resumed hearing was notified to the barrister
first;
|
| |
(c)
|
whether the brief relates to a proceeding in which the barrister
has agreed to appear on the date in question;
|
| |
(d)
|
which brief would be the more difficult for another barrister
to master in the available time;
|
| |
(e)
|
which brief was accepted first.
|
|
104.
|
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, as the case may be, has expressly permitted
the barrister to do so.
|
|
105.
|
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.
|
|
106.
|
A barrister must promptly inform the instructing solicitor or
the client, as the case may be, 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.
|
|
107.
|
A barrister shall not communicate to the media any reasons for
declining to accept or retain a brief.
|
|
Handing Brief Over to Another Barrister
|
|
108.
|
A barrister shall not hand over a brief to another barrister
to conduct the case unless the instructing solicitor has consented
to that course.
|
|
Advices
|
|
109.
|
(a)
|
Where a barrister has been asked to advise a client who is not
identified, he or she should insist on being informed whether
the advice is sought by or for the benefit of a particular client
or clients, or for any and what wider purpose;
|
| |
(b)
|
Whether or not the client is identified, if the barrister apprehends
that a written advice is sought for some wider purpose than the
affairs of a client, the barrister should seek and obtain a satisfactory
assurance that the written advice:
|
| |
|
(i)
|
will not be published or supplied by the solicitor or the client
to other persons for the purpose of promoting or soliciting business
for the solicitor or the client with those other persons without
the consent of the barrister to the particular use proposed (which
consent should not be given where there is any doubt as to the
propriety of the proposed use of the advice);
|
| |
|
(ii)
|
will not be used by the solicitor or the client for circulation
to the other persons to invite or encourage them to enter into
artificial or contrived arrangements or schemes for the purpose
of avoiding the operation of the law;
|
| |
(c)
|
Whether or not the client is identified, if the barrister apprehends
that his or her name may be used for the purpose of promoting
or soliciting business for the solicitor or the client with other
persons, the barrister should seek and obtain an assurance that
his or her name will not be used for such purpose without the
supply of the full written advice or the supply of the whole or
the relevant part thereof to such persons and then only subject
to paragraph (b) thereof.
|
| |
(d)
|
Without derogating from common law principles and all statutory
provisions governing the involvement of legal advisers in advice
with respect to possible breaches of the law by a client, a barrister
should adhere to the principles that a legal adviser may not advise
clients as to the ways in which unlawful purposes may be achieved
and should not be involved in suggesting or proposing methods
of breaking the law (including methods of evading revenue laws);
|
| |
(e)
|
A barrister may charge a proper fee for any advice commensurate
with seniority, experience, skill, time, difficulty and responsibility
and all other relevant matters, but it is a breach of ethics for
the barrister to fix a fee for the advice based upon the possible
entrepreneurial value of such advice to the solicitor or the client;
|
| |
(f)
|
This rule does not detract from the primary duty of a barrister
to advise clients as to their legal rights to the best of the
barrister's skill and ability uninfluenced by his or her own personal
views (if any) of the client or of the client's activities.
|
|
Retainers
|
|
110.
|
(a)
|
A barrister may accept a retainer only from:
|
| |
|
(i)
|
a solicitor; or
|
| |
|
(ii)
|
in relation to any matter or matters in which a patent attorney
can instruct the barrister without the intervention of a solicitor,
a patent attorney;
|
| |
(b)
|
A retainer is the retainer of the lay client;
|
| |
(c)
|
When a barrister has held a brief for any party in any proceeding
he or she shall not accept a retainer on an appeal from any decision
in such proceeding for any other party without giving the original
client the opportunity of retaining or briefing him or her for
such appeal;
|
| |
(d)
|
Subject to these Rules, the acceptance of a retainer precludes
a barrister from appearing in the courts of a State, Nation or
Territory in an interest adverse to that of the client retaining
him notwithstanding that at the date of the acceptance of the
retainer the barrister had no right of audience in the courts
of relevant State, Nation or Territory, but such acceptance does
not compel the barrister retained to seek admission to practise
in the courts of some other State, Nation, or Territory if at
the first mentioned date he or she had no right of audience in
the courts of that State, Nation or Territory;
|
| |
(e)
|
Acceptance of a retainer confers no authority on the barrister:
a brief must be delivered in order to authorise the barrister
to take any step in a proceeding.
|
|
General Retainers
|
|
111.
|
(a)
|
A general retainer is an arrangement whereby a barrister undertakes
to the person by whom he or she is retained, subject to these
Rules, not to accept a brief to appear for any other person or
party in any proceeding in the courts or tribunals, or in the
matters or classes of matters, to which the retainer relates,
being a proceeding in which the person by whom the barrister has
been retained is, or is proposed to be, a party, without first
giving that person the opportunity to brief him or her in the
proceeding;
|
| |
(b)
|
A general retainer may relate to:
|
| |
|
(i)
|
all courts and tribunals;
|
| |
|
(ii)
|
those courts and/or tribunals specified in the retainer;
|
| |
|
(iii)
|
all matters;
|
| |
|
(iv)
|
those matters, or classes of matters specified in the retainer;
or
|
| |
|
(v)
|
any combination of the above; and in any event must specify the
courts, tribunals or matters to which it applies;
|
| |
(c)
|
A general retainer shall extend only to the courts, tribunals,
matters or classes of matters specified in it, notwithstanding
that a proceeding which is covered by the retainer gives rise
to an appeal or associated proceeding in a court or tribunal or
involving matters or classes of matters not specified in the retainer;
|
| |
(d)
|
A barrister is not bound to accept a general retainer and shall,
when considering whether or not to accept a retainer, observe
the provisions of these Rules as to confidentiality and as to
the circumstances when it would not be proper for him or her to
accept or retain a brief;
|
| |
(e)
|
A general retainer may be accepted which is delivered on behalf
of a company and its named subsidiaries. Subject to this provision,
a general retainer, on behalf of a body corporate or unincorporate
does not apply to a subsidiary or individual members or a member
of the body;
|
| |
(f)
|
A general retainer shall rank for priority according to the date
of acceptance; provided that a general retainer which has been
renewed shall rank according to the date of its original acceptance;
|
| |
(g)
|
Where a barrister holds a general retainer from both sides in
pending litigation he or she is precluded from acting for either
party in the dispute;
|
| |
(h)
|
A general retainer delivered to a junior barrister who is appointed
silk continues to operate until it expires or until the expiration
of 12 months after his or her appointment as silk, whichever shall
first occur;
|
| |
(i)
|
A general retainer shall last for such period, or until such
date, as is specified in it, and if no such period or date is
specified, it shall last for 12 months from the date of acceptance;
|
| |
(j)
|
A barrister may treat a general retainer as determined and accept
a brief or retainer from another party where, after the institution
of any proceeding to which the general retainer relates:
|
| |
|
(i)
|
no brief or special retainer is delivered to the barrister within
a reasonable time; or
|
| |
|
(ii)
|
the barrister has enquired of the solicitor or attorney acting
for the lay client in that proceeding whether he or she is to
receive a brief or special retainer and has not received a brief
or special retainer within 3 days, or has received an answer in
the negative;
|
| |
|
provided that -
|
| |
|
(i)
|
the non-delivery of a brief or special retainer to a Queen's
Counsel holding a general retainer on any occasion on which it
is usual to instruct a junior counsel only, and where a junior
counsel has in fact been instructed, shall not operate to determine
the general retainer of the Queen's Counsel;
|
| |
|
(ii)
|
when more than one junior counsel hold general retainers, the
delivery of a brief or special retainer to one only of them on
any occasion on which it is usual to instruct one junior counsel
only, and one junior counsel is in fact instructed, shall not
determine the general retainer of the other or others of such
counsel;
|
| |
|
(iii)
|
the non-delivery of a brief or special retainer which the barrister
has intimated that he or she cannot or ought not to accept, shall
not operate to determine a general retainer.
|
|
Special Retainers
|
|
112.
|
(a)
|
A special retainer is the engagement of a barrister for a particular
party in particular proceedings, either existing or threatened;
|
| |
(b)
|
Subject to the provisions of these Rules with respect to the
acceptance of briefs, and to the payment of the fee for the retainer,
a special retainer is binding when delivered;
|
| |
(c)
|
The proceeding to which a special retainer relates shall be taken
to include every hearing, application, appeal and other step in
or in relation to that proceeding within the one court or tribunal,
but shall not include an appeal to another court or tribunal,
or any separate proceeding (such as a proceeding in bankruptcy
or criminal proceeding) arising out of the proceeding to which
the retainer relates;
|
| |
(d)
|
(i)
|
A special retainer in any proceedings gives the client a right
to the services of the barrister retained during the whole progress
of the proceedings;
|
| |
|
(ii)
|
A special retainer does not entitle a Queen's Counsel to delivery
of a brief on occasions during the proceedings where it is usual
to instruct a junior barrister only;
|
| |
|
(iii)
|
Where a team of barristers has been retained including more than
one junior barrister, only one of such junior barristers is entitled
to the delivery of a brief on occasions during proceedings when
it is usual to instruct one junior barrister only;
|
| |
(e)
|
A barrister who has received a special retainer is entitled to
consider himself or herself not bound by the retainer in the event
that he or she is not briefed in the proceedings to which the
special retainer applies.
|
| |
|
PART IV ñ INDEPENDENCE
|
|
Sole Practitioner
|
|
113.
|
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 Rules 92 and 96
or by the retainer Rules in Rules 111 and 112; or
|
|
(b)
|
|
competing with any other legal practitioner for the work offered
by any brief for reasons other than those expressly referred to
in these Rules.
|
|
114.
|
A barrister must be a sole practitioner, and must not practise:
|
| |
(a)
|
in partnership with any person;
|
| |
(b)
|
as the employer of any legal practitioner who is in active practice;
or
|
| |
(c)
|
as the employee of any person;
|
| |
provided that:-
|
| |
|
two or more practising barristers may agree to share professional
expenses, either in proportion to their receipts or in any other
way; but they may not agree to share professional receipts or
agree (save as provided in these Rules) that any one barrister
shall assume responsibility for the professional work of another.
|
|
115.
|
A barrister will not have breached Rules 113 and 114 by carrying
out a specific task of research or other paper work in chambers
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 chamber work takes full
personal responsibility for the work unless the instructing solicitor
otherwise consents;
|
| |
(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 pupillage 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.
|
|
116.
|
A barrister may not give a commission or present to any person
by reason of or in connection with the introduction of professional
work by that person to the barrister.
|
|
117.
|
A barrister shall not have or make any agreement, arrangement
or understanding with any solicitor concerning any sharing of
costs, fees or profits.
|
|
118.
|
A barrister shall not be engaged in any vocation incompatible
either with his or her position as, or with the proper discharge
of his or her duties as, a barrister. In engaging in another vocation,
the barrister should have regard to the following considerations:
|
| |
(a)
|
another vocation must not be such that a barrister's association
with it may adversely affect the reputation of the Bar or the
barrister's own reputation;
|
| |
(b)
|
another vocation must not prejudice a barrister's ability to
attend properly to the interests of his or her clients.
|
|
119.
|
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.
|
|
120.
|
A barrister shall not act as, or perform the work of, a solicitor,
save as permitted by these Rules.
|
|
121.
|
A barrister shall not, save in urgent or exceptional circumstances,
engross documents for a solicitor on the solicitor's professional
stationery.
|
|
122.
|
A barrister shall not collect from a client money for solicitors'
costs or enter into any contract or arrangement with a client
that has that effect.
|
|
Selection of Solicitor
|
|
123.
|
A barrister shall not, save in urgent and exceptional circumstances,
retain a solicitor on behalf of any person.
|
|
124.
|
A barrister must not require that any other particular legal
practitioner be instructed or briefed, as the case may be, so
as in any way to impose that requirement as a condition of the
barrister accepting any brief or instructions.
|
|
125.
|
It is improper for a barrister to offer unsolicited advice in
relation to the selection of solicitors by a lay person. When
such advice is sought it is not improper for the barrister to
give such advice, but it is desirable that the names of at least
three solicitors from different firms who are, in the opinion
of the barrister, competent and possessed of any necessary special
expertise or experience, should be put forward.
|
|
Instructed by Solicitor
|
|
126.
|
Subject to rule 127 and the Direct Access Rules in Part VI, a
barrister shall not advise or act in a professional capacity in
any matter, whether contentious or otherwise, unless the barrister
is instructed by:
|
| |
(a)
|
a solicitor entitled to practise in the home state;
|
| |
(b)
|
in the case of a brief to appear at a hearing at a place within
Australia but outside the home state, a legal practitioner entitled
to practise as a solicitor in that place;
|
| |
(c)
|
in the case of a brief to appear (whether in the home state or
otherwise) in a federal court or in a court exercising federal
jurisdiction, a legal practitioner entitled to practise as a solicitor
in that court;
|
| |
(d)
|
in the case of a brief to appear at a place outside Australia,
a legal practitioner entitled to practise in that place;
|
| |
(e)
|
in the case of a brief to advise, a solicitor or legal practitioner
entitled to practise in any relevant jurisdiction.
|
|
127.
|
A barrister may advise or act in a professional capacity without
the intervention of an instructing solicitor:
|
| |
(a)
|
where the barrister is instructed by a patent attorney to appear
before a Commissioner of Patents, a Registrar of Trade Marks or
other officer having jurisdiction in connection with patents,
trade marks or designs, or to give advice in relation to any matter
within the jurisdiction of such Commissioner, Registrar or officer,
or in relation to the validity or infringement of any patent,
trade mark or design and any related matter;
|
| |
(b)
|
where the barrister is a member of the Defence Force Reserve
and is appearing before a service tribunal or inquiry, Defence
Force Magistrate, court Martial Appeal or Court Martial Appeal
Tribunal or is acting as a Defence Force Magistrate, a Judge Advocate
or a Reviewing Authority;
|
| |
(c)
|
where the barrister is advising or acting as the Defence Force
Advocate;
|
| |
(d)
|
where the barrister is providing voluntary and unpaid assistance
at a legal advice centre or charitable organisation in accordance
with Part VII;
|
| |
(e)
|
where the barrister is giving free legal advice to a friend or
relative;
|
| |
(f)
|
in an emergency, where a lay person would be gravely disadvantaged
if the barrister did not forthwith advise and if necessary commence
to act, provided that the barrister shall not continue to act
or to accept instructions from the lay person once sufficient
time has elapsed for the lay person to instruct a solicitor;
|
| |
(g)
|
when acting in the course of his or her duties as a member of
the defence forces;
|
| |
(h)
|
when acting as counsel assisting a commission or inquiry or when
counsel is appointed as Royal Commission commissioner or person
appointed by the Government to conduct an inquiry;
|
| |
(i)
|
where the barrister is briefed or instructed to advise by the
Crown or by any government department.
|
|
Referral to Solicitor
|
|
128.
|
A barrister who is asked by any person to do work or engage in
conduct which is not barristers' work, or which appears likely
to require work to be done which is not barristers' work, must
promptly inform that person:
|
| |
(a)
|
of the effect of Rule 120; and
|
| |
(b)
|
that, if it be the case, solicitors are capable of providing
those services to that person.
|
|
129.
|
A barrister who provides information under Rule 128 to a person
must not inform the person that the barrister will perform barristers'
work for that person on condition that a particular solicitor
briefs the barrister to do so.
|
|
Appearance with Others not in Independent Practice
|
|
130.
|
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.
|
|
Co-Advocacy
|
|
131.
|
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.
|
|
Appearance with Persons from another State
or Territory
|
|
132.
|
(a)
|
A barrister may appear in a court in his or her home state with
any legal practitioner (not being a solicitor resident in his
or her home state) who practises in another state or territory
if that practitioner has appeared in the same cause or matter
in that other State or Territory.
|
| |
(b)
|
For this purpose, any application for leave or special leave
to appeal, or any appeal, to the Federal Court or the High Court
or to any Judge thereof shall be treated as the same cause or
matter as that which gave rise to such application or appeal.
|
|
133.
|
A barrister is entitled to appear in a court or tribunal in another
State or Territory with an amalgam resident in that State or Territory,
unless there is in existence a separate Bar in that State or Territory
under the rules of which a member of that Bar would not be entitled
to appear with an amalgam resident in that state or territory
in like circumstances.
|
| |
|
PART V - PARTICULAR DUTIES IN CRIMINAL MATTERS
|
|
Prosecutor's Duties
|
|
134.
|
A prosecutor must fairly assist the court to arrive at the truth,
must seek impartially to have the whole of the relevant evidence
placed intelligibly before the court, and must seek to assist
the court with adequate submissions of law to enable the law properly
to be applied to the facts.
|
|
135.
|
A prosecutor must not press the prosecution's case for a conviction
beyond a full and firm presentation of that case.
|
|
136.
|
A prosecutor must not, by language or other conduct, seek to
inflame or bias the court against the accused.
|
|
137.
|
A prosecutor must not argue any proposition of fact or law which
the prosecutor does not believe on reasonable grounds to be capable
of contributing to a finding of guilt and also to carry weight.
|
|
138.
|
A prosecutor has a duty to consider whether the evidence proposed
to be called is capable as a matter of law of supporting a conviction.
If the evidence on any view is incapable of supporting a conviction,
the prosecutor is under a duty to so advise the prosecuting authority.
If it is not possible to come to an agreed view on the matter,
the barrister may return the brief. If circumstances arise during
the conduct of a prosecution which cause the prosecutor to conclude
that the matter should not proceed further, the prosecutor is
under a duty to seek instructions but, if it is not possible to
obtain instructions, the prosecutor is under a duty to make such
view known to the court.
|
|
139.
|
A prosecutor must call as part of the prosecution's case all
witnesses:
|
| |
(a)
|
whose testimony is admissible and necessary for the presentation
of the whole picture; or
|
| |
(b)
|
whose testimony provides reasonable grounds for the prosecutor
to believe that it could provide admissible evidence relevant
to any matter in issue;
|
| |
unless:
|
| |
|
(i)
|
the opponent consents to the prosecutor not calling a particular
witness;
|
| |
|
(ii)
|
the only matter with respect to which the particular witness
can give admissible evidence has been dealt with by an admission
on behalf of the accused; or
|
| |
|
(iii)
|
the prosecutor believes on reasonable grounds that the administration
of justice in the case would be harmed by calling a particular
witness or particular witnesses to establish a particular point
already adequately established by another witness or other witnesses
|
| |
|
provided that:
|
| |
|
|
(x)
|
the prosecutor is not obliged to call evidence from a particular
witness, who would otherwise fall within (a) and (b), if the prosecutor
believes on reasonable grounds that the testimony of that witness
is plainly unreliable by reason of the witness being in the camp
of the accused or from any other identifiable circumstances;
|
| |
|
|
(y)
|
the prosecutor must inform the opponent as soon as practicable
of the identity of any witness whom the prosecutor intends not
to call on any ground within (i), (ii) or (iii), together with
the grounds on which the prosecutor has reached that decision.
|
|
140.
|
While the prosecuting barrister alone bears the responsibility
of deciding whether a person will be called as a witness for the
prosecution, this discretion should not be exercised in order
to obtain unfair advantage for the prosecution.
|
|
141.
|
A prosecutor must disclose to the opponent as soon as practicable
all material (including the names of and means of finding prospective
witnesses in connection with such material) available to the prosecutor
or of which the prosecutor becomes aware which could constitute
evidence relevant to the guilt or innocence of the accused, unless:
|
| |
(a)
|
the prosecutor believes on reasonable grounds that such disclosure,
or full disclosure, would seriously threaten the integrity of
the administration of justice in those proceedings or the safety
of any person or is clearly contrary to the public interest; and
|
| |
(b)
|
the prosecutor believes on reasonable grounds that such a threat
could not be avoided by confining such disclosure, or full disclosure,
to the opponent being a legal practitioner, on appropriate conditions
which may include an undertaking by the opponent not to disclose
certain material to the opponent's client or any other person
|
| |
provided that any doubt as to whether the balance is in favour
of, or against, disclosure should always be resolved in favour
of disclosure.
|
|
142.
|
A prosecutor who has decided not to disclose material to the
opponent under Rule 141 must consider whether:
|
| |
(a)
|
the defence of the accused could suffer by reason of such non-disclosure;
|
| |
(b)
|
the charge against the accused to which such material is relevant
should be withdrawn; and
|
| |
(c)
|
the accused should be faced only with a lesser charge to which
such material would not be so relevant.
|
|
143.
|
A prosecutor who has reasonable grounds to believe that certain
material available to the prosecution may have been unlawfully
or improperly obtained must promptly:
|
| |
(a)
|
inform the opponent if the prosecutor intends to use the material;
and
|
| |
(b)
|
make available to the opponent a copy of the material if it is
in documentary form; and
|
| |
(c)
|
inform the opponent of the grounds for believing that such material
was unlawfully or improperly obtained.
|
|
144.
|
A prosecutor must not confer with or interview any of the accused
except in the presence of the accused's representative.
|
|
145.
|
A prosecutor must not inform the court or the opponent that the
prosecution has evidence supporting an aspect of its case unless
the prosecutor believes on reasonable grounds that such evidence
will be available from material already available to the prosecutor.
|
|
146.
|
A prosecutor who has informed the court or the opponent that
the prosecutor has evidence supporting an aspect of its case and
who has later learnt that such evidence will not be available,
must immediately inform the opponent of that fact and must inform
the court of it when next the case is before the court.
|
|
147.
|
A prosecutor must not seek to persuade the court to impose a
vindictive sentence or a sentence of a particular magnitude, but:
|
| |
(a)
|
must make an adequate presentation of the facts;
|
| |
(b)
|
must correct any error made by the opponent in address on sentence
and fairly test any defence evidence;
|
| |
(c)
|
must inform the court of any relevant authority or legislation
bearing on the appropriate sentence;
|
| |
(d)
|
must assist the court to avoid appealable error on the issue
of sentence;
|
| |
(e)
|
may submit that a custodial or non-custodial sentence is appropriate;
and
|
| |
(f)
|
may inform the court of an appropriate range of severity of penalty,
including a period of imprisonment, by reference to relevant appellate
authority.
|
|
148.
|
A barrister who appears as counsel assisting an inquisitorial
body such as the National Crime Authority, the Australian Securities
Commission, a Royal Commission or other statutory tribunal or
body having investigative powers must act in accordance with these
Rules as if the body were the court referred to in those Rules
and any person whose conduct is in question before the body were
the accused.
|
|
When Defending
|
|
149.
|
A barrister representing a person charged with a criminal offence
should endeavour to protect that person from being convicted,
except by a competent tribunal and upon admissible evidence sufficient
to support a conviction for the offence charged. A barrister must
not invent facts to assist in advancing the defence case.
|
|
150.
|
Subject to these Rules, a barrister representing a person charged
with a criminal offence is under a duty to defend that person
irrespective of any belief or opinion which the barrister may
have formed as to whether that person is guilty or not guilty.
|
|
151.
|
It is the duty of a barrister representing a person charged with
a criminal offence to advise that person generally about any plea
to the charge. It should be made clear that whether the client
pleads "not guilty" or "guilty", the client has the responsibility
for and complete freedom of choice in any plea entered. For the
purposes of giving proper advice, the barrister is entitled to
refer to all aspects of the case and where appropriate may advise
a client in strong terms that the client is unlikely to escape
conviction, and that a plea of guilty is generally regarded by
the court as a mitigating factor, at least to the extent that
the client is thereby viewed by the court as co-operating in the
criminal justice process.
|
|
152.
|
Where the accused is a person who suffers from some mental or
physical disability or who appears to be disadvantaged from lack
of education, lack of familiarity with the English language, lack
of ability to communicate, or otherwise, a barrister appearing
for the accused should take special care to ensure that those
factors do not work to the accused's prejudice.
|
|
153.
|
Notwithstanding a barrister's duty to the court to conduct proceedings
as expeditiously as the interests of justice require, a barrister
appearing for the accused is under no duty, other than by compulsion
of law, to disclose to the court or to the prosecution the nature
of the defence case. A barrister appearing for the accused should
not make admissions of fact or consent to the absence of prosecution
witnesses without first obtaining instructions.
|
|
154.
|
A barrister appearing for the accused is under a duty to advise
that person of his or her rights, for example, the right to challenge
jurors, the right to give evidence, the right to call evidence,
to name but three. A barrister may properly advise a client as
to the exercise of these rights but it is the client who must
make the decision. If a barrister receives instructions from a
client that the client is not guilty of the offence charged but
does not wish to give evidence, it is the duty of the barrister
to put the client's defence before the court and, if necessary,
to make positive suggestions to witnesses.
|
|
155.
|
Where a client denies committing the offence charged, but nonetheless
insists on pleading guilty to it for other reasons, the barrister
may continue to represent that client, but only after advising
what the consequences will be, and that submissions in mitigation
will have to be on the basis that the client is guilty. Wherever
possible in such a case, a barrister should receive written instructions.
|
|
156.
|
A barrister should not attribute to another the offence with
which the client is charged, unless the facts or circumstances
disclosed by the evidence in the case, or which form part of the
barrister's instructions, or rational inferences to be drawn from
them, raise at least a reasonable suspicion that the offence may
have been committed by such other person.
|
|
157.
|
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.
|
|
158.
|
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.
|
|
159.
|
Where on sentence a barrister is aware of a client's previous
convictions which have not been made known to the court by the
prosecution, a barrister is under no duty to correct the omission
of the prosecution. However, the barrister remains under a duty
not to mislead the court and therefore should not make any submission
capable of being regarded as an assertion that the client has
no previous convictions.
|
|
160.
|
A barrister must not promote, or be a party to, any arrangement
whereby the bail provided by a surety is obtained by using the
money of the accused person, or by which the surety is given an
indemnity by the accused person or a third party acting on behalf
of the accused person.
|
|
161.
|
A barrister briefed to appear in criminal proceedings whose client
confesses guilt to the barrister but maintains a plea of not guilty:
|
| |
(a)
|
should continue to act and do all that the barrister honourably
can 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; and
|
| |
(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;
|
| |
(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.
|
|
162.
|
Where a barrister has accepted a brief to defend the person charged
with a serious criminal offence, the barrister shall not return
the brief except in the most compelling circumstances and then
only if sufficient time remains for another barrister to master
the case provided that the barrister may in any case return the
brief with the consent of the client given with full knowledge
of all the circumstances concerning the return of the brief, including
the terms of this rule.
|
|
163.
|
In a clash between two criminal matters which are due to be heard
on the same day:
|
| |
(a)
|
a barrister should ordinarily give preference to the brief fraught
with the more serious consequences to the client, for example,
a brief where the charge is murder as against a brief where the
charge is stealing, or a brief where a conviction will almost
certainly lead to a term of imprisonment as against a brief in
which a conviction will most likely lead to a fine;
|
| |
(b)
|
generally speaking a brief on a trial which will lead to a verdict
should take priority over a brief on a committal although this
may yield to particular circumstances as in (c);
|
| |
(c)
|
the brief in which insufficient time appears to be available
for another barrister to master it may be given preference to
a brief,
|
| |
in a more serious matter in respect of which that consideration
does not arise.
|
|
164.
|
If a barrister is instructed in a civil case which clashes in
point of time with a case in which the same barrister is briefed
to appear for the accused in the trial of a serious criminal offence,
the barrister is obliged to return the brief in the civil case
unless permission is given by the client under rule 162 or by
the Bar Council.
|
| |
|
PART VI - DIRECT ACCESS
|
|
165.
|
Subject to these rules, a barrister may accept instructions or
a brief (without the intervention of a solicitor) from:
|
| |
(a)
|
a member of an approved body acting on its own or on behalf of
a client;
|
| |
(b)
|
a lay client in a matter in which the client is directly concerned;
or
|
| |
(c)
|
the Victoria Legal Aid in criminal matters;
|
| |
hereinafter referred to as a "direct access matter".
|
|
166.
|
An approved body is a professional or other body which has been
approved by the Bar Council.
|
|
167.
|
The Rules of Conduct apply to direct access matters.
|
|
168.
|
A barrister:
|
| |
(a)
|
must not accept any brief or instructions in a direct access
matter if he or she considers it is in the interests of the client
that a solicitor be instructed.
|
| |
(b)
|
must decline to act in a direct access matter in which at any
stage he or she considers it in the interests of the client that
a solicitor be instructed.
|
|
169.
|
A barrister may appear in a criminal matter in the County Court
for a legally aided person if he or she is requested to do so
by the Victoria Legal Aid without an instructing solicitor and
he or she is satisfied that no prejudice will be suffered either
by the barrister or by the client due to the absence of such a
solicitor.
|
|
170.
|
A barrister may appear in a direct access matter in the Magistrates'
Court in a criminal proceeding.
|
|
171.
|
A barrister must not, except with the written permission of the
Ethics Committee, accept any instructions or brief in a direct
access matter:
|
| |
(a)
|
to appear in the High Court of Australia, Federal Court of Australia,
Industrial Relations Court of Australia, Family Court of Australia,
Supreme Court of Victoria, County Court of Victoria (except in
criminal matters where the barrister is instructed by Victoria
Legal Aid), or in any civil proceeding in the Magistrates' Courts
of Victoria;
|
| |
(b)
|
once proceedings are instituted (if acting for a plaintiff) and
served (if acting for a defendant) in any of the courts set out
in sub-paragraph (a) hereof.
|
|
172.
|
A barrister who has accepted any instructions or a brief in a
direct access matter must cease to act once proceedings are instituted
(if acting for a plaintiff) and served (if acting for a defendant)
in any of the courts set out in Rule 171(a) hereof unless:-
|
| |
(a)
|
retained by a solicitor to act; or
|
| |
(b)
|
given permission by the Ethics Committee so to act.
|
|
173.
|
Notwithstanding anything to the contrary in these Rules, a barrister
in a direct access matter must not deliver, file or lodge any
document as the legal practitioner on the record in any Court
or Tribunal.
|
|
174.
|
A barrister who accepts instructions or a brief in a direct access
matter must:
|
| |
(a)
|
keep a case record in written form which sets out:
|
| |
|
(i)
|
the date of receipt of the instructions or brief, the name of
the client, the name of the case and any requirements of the client
as to time limits;
|
| |
|
(ii)
|
the date on which the instructions or brief were accepted;
|
| |
|
(iii)
|
the terms on which the instructions or brief were accepted;
|
| |
|
(iv)
|
the dates of any subsequent instructions, of the dispatch of
advices and other written work, or conferences and of telephone
conversations;
|
| |
|
(v)
|
when agreed the fee;
|
| |
|
(vi)
|
when made any promises or undertakings as to the completion of
the work;
|
| |
|
(vii)
|
as soon as they become apparent to the barrister, any time limits;
|
| |
(b)
|
retain:
|
| |
|
(i)
|
copies of instructions and briefs;
|
| |
|
(ii)
|
copies of all advices given and documents drafted or approved;
|
| |
|
(iii)
|
a list of all documents enclosed with any instructions or brief;
|
| |
|
(iv)
|
notes of all conferences and of all advice given on the telephone.
|
|
175.
|
A barrister must not accept instructions under these Rules:
|
| |
(a)
|
to receive or handle client's money;
|
| |
(b)
|
to perform any administrative work not normally performed by
a barrister in private practice;
|
| |
(c)
|
to perform inter partes work of a kind not normally performed
by a barrister in private practice;
|
| |
(d)
|
from a member of an approved body on behalf of a client in respect
of a matter not generally within the professional expertise of
that body.
|
|
176.
|
A barrister shall not commence any work on a direct access matter
until the barrister and the client have executed the standard
terms of engagement approved by the Bar Council, except where
it is impossible to do so prior to commencing the work, in which
case the terms should be executed as soon as is reasonably practicable.
|
|
177.
|
All fees paid for direct access work shall be paid into a trust
account established pursuant to the Legal Practice Act to be retained
in that trust account until a memorandum of fees is forwarded
to the client.
|
| |
|
PART VII - LEGAL ADVICE CENTRES AND CHARITABLE
WORK
|
|
178.
|
For the purpose of these Rules:
|
| |
(a)
|
"Centre" means a place (other than chambers or a solicitor's
office) where legal advice by qualified practitioners is habitually
given without fee in the course of the operation of a scheme to
provide legal services to persons who would not otherwise have
access to them;
|
| |
(b)
|
"Charitable Organisation" includes a marriage guidance bureau
and any charitable, benevolent or welfare organisation.
|
|
179.
|
A barrister may attend at a Centre and participate in a scheme
conducted at such a Centre if the Centre is approved by the Bar
Council. A barrister wishing to participate should advise the
Executive Director in writing. The Executive Director will communicate
that wish to the Centre.
|
|
180.
|
A barrister assisting at a Centre is bound by the ethics and
etiquette of the Bar, and these Rules. The barrister should be
particularly careful not to act in such a way as to give rise
even to a suspicion that services are given in order to obtain
introductions to solicitors, or for financial gain.
|
|
181.
|
A barrister may act in proceedings as counsel for a lay client
after advising that client at a Centre if:
|
| |
(a)
|
instructions are received from a solicitor (who may be a solicitor
working at the same Centre); and
|
| |
(b)
|
no fee is paid.
|
|
182.
|
Unless instructed by a solicitor, a barrister must interview
lay clients attending at the Centre only at that Centre. To those
clients he or she should appear to be no more than one of the
legal advisers at the Centre.
|
|
183.
|
A barrister may draft but not sign letters on behalf of clients
at a Centre.
|
|
184.
|
There is no objection to a barrister showing to a client a list
of solicitors kept by the Centre. The client must, however, be
left to choose a solicitor from amongst those names on the list
who deal with the relevant class of work.
|
|
185.
|
A barrister who undertakes voluntary work for a charitable organisation
may properly give advice, without the intervention of a solicitor,
to a person referred for that purpose by the organisation, provided
that:
|
| |
(a)
|
there shall be no fee or payment in respect of that advice;
|
| |
(b)
|
there shall be in the course of giving such advice no recommendation
to that person that any particular solicitor should be retained;
|
| |
(c)
|
having given advice to that person, the barrister shall not thereafter
act professionally in any proceedings relating to the subject
matter of that advice.
|
| |
|
PART VIII - FEES
|
|
186.
|
Subject to these Rules and the Legal Practice Act, the amount
of or the method of calculating a fee shall be that which is agreed
with the instructing solicitor or client.
|
|
187.
|
A barrister may not undertake to represent any person, authority
or organisation for a fixed salary, or accept a single brief marked
with a single fee to appear on behalf of a client in unrelated
matters.
|
|
Fees to Be Collected by Clerk
|
|
188.
|
Accounts for barristerís fees may be rendered by a barristerís
clerk and all amounts paid for such fees shall pass through the
hands of the clerk.
|
|
False Receipts - Conditional Payments
|
|
189.
|
(a)
|
A barrister shall not sign a receipt for any fee unless it has
been actually paid;
|
| |
(b)
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A barrister shall not accept a cheque or promissory note on condition
that it shall not be payable pending the result of a taxation
of costs.
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Time for Payment
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190.
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In the absence of other agreement, a barrister is entitled, but
not obliged, to require payment of fees within a reasonable time
of rendering a memorandum of fees, whether or not any litigation
to which the work relates is concluded.
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191.
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In a costs agreement under s. 96 of the Legal Practice Act a
barrister may insist on an appropriate fee being paid on delivery
of the brief, or before the work to which it relates shall have
been done.
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192.
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Where a solicitor has assumed primary liability for the payment
of his or her fees and it is not otherwise agreed:
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(a)
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it is the general rule that the barrister should seek to recover
unpaid fees from the instructing solicitor and not directly from
the lay client;
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(b)
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without the permission of the Ethics Committee it is improper
for a barrister to seek to recover unpaid fees directly from the
lay client except:
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(i)
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where the solicitor is bankrupt or has made an arrangement of
composition with his or her creditors or is insolvent;
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(ii)
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where the solicitor is deceased and his or her estate is insolvent;
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(iii)
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where the solicitor cannot be served with legal process; or
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(iv)
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where the barrister is unable to recover unpaid fees from the
solicitor after having obtained a judgment in respect thereof;
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(c)
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it is improper for a barrister to seek to recover unpaid fees
directly from the lay client where the lay client has previously
paid or provided the amount of such fees to the solicitor who
retained the barrister unless the lay client is entitled to recover
the amount of the fees from the Fidelity Fund pursuant to the
Legal Practice Act 1996 and the barrister is not so entitled.
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Factoring
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193.
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A barrister shall not factor or assign his or her fee debts unless:
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(a)
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the transaction is on terms that no proceeding or step for recovery
shall be taken save in the barrister's name or with his or her
express and specific approval given to that proceeding or step;
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(b)
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the transaction does not take out of the hands of the barrister
the ability to determine that no proceedings or step for recovery
shall be taken having regard to the particular circumstances of
the client, the relationship between the barrister and the solicitor
or the solicitor and the client or the barrister and the client,
the maintenance of the reputation and goodwill of the barrister
and of the Bar as a whole and all like matters which should be
taken into account when a decision is reached by a barrister to
take a proceeding or step for the enforcement of a debt.
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PART IX - CODE OF CONDUCT
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Sexual Harassment
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194.
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(a)
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A barrister shall not, in any professional context, engage in
sexual harassment.
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(b)
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For the purposes of sub-rule 194(a) a barrister sexually harasses
another person if:
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(i)
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the barrister makes an unwelcome sexual advance, or an unwelcome
request for sexual favours, to that person; or
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(ii)
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engages in other unwelcome conduct of a sexual nature in relation
to that person;
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in circumstances in which a reasonable person, having regard
to all the circumstances, would have anticipated that that person
would be offended, humiliated or intimidated.
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"Conduct of a Sexual Nature" includes making a statement of a
sexual nature to the person allegedly harassed or in the presence
of that person, whether the statement is made orally or in writing.
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Vilification
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195.
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A barrister shall not, in any professional context, engage in
conduct which is calculated to disparage, vilify or insult another
person ("the person allegedly vilified") on the basis of that
person's sex, sexual preference, race, colour, descent, national
or ethnic origin or religion.
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Procedure
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196.
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(a)
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The person allegedly harassed or vilified may lodge a complaint
in writing alleging a breach of Rule 194(a) or Rule 195 with any
one of the persons appointed from time to time by the Bar Council
as a Conciliator for Complaints of Harassment ("Bar Conciliator");
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(b)
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A Bar Conciliator who receives such a complaint shall treat the
complaint and any response as confidential but may do any one
or more of the following:
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(i)
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provide the person allegedly harassed or vilified with counselling
and advice;
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(ii)
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inform the barrister concerned of the complaint;
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(iii)
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provide that barrister with an opportunity to respond to the
complaint;
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(iv)
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provide that barrister with an opportunity to be counselled or
advised in respect of the complaint;
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(v)
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arrange for the complaint to be conciliated by that Bar Conciliator
acting alone or together with any other Bar Conciliator.
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The steps referred to in sub-paragraphs (i), (ii), (iii) and
(iv) shall only be taken with the consent of the person allegedly
harassed or vilified. The step referred to in sub-paragraph (v)
shall only be taken with the consent of both parties.
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(c)
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Nothing in these Rules shall prevent the person allegedly harassed
or vilified from lodging a complaint alleging a breach of Rule
194(a) or Rule 195 or of Section 137 of the Legal Practice
Act 1996 with the Ethics Committee or the Chairman of the Bar
Council.
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GUIDELINES
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Guidelines Concerning Facilities (Rules 80 and 81)
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The main concern of Rule 80 is to ensure that Barristers maintain
adequate chambers and staff to enable them to conduct their practices
properly and professionally.
These guidelines are intended to provide a useful guide to assist
Barristers to comply with the requirements of Rule 80. Rule 80
is not intended to impose any unnecessary financial or other burden
on Barristers in the conduct of their practice. It is not intended
that the Rule operate so as to require that Barristers, for example,
use the most up to date technology, have an extensive library,
or have grandiose premises from which they conduct their practice.
It is recognised that the needs of each individual Barrister vary
according to his or her practice and individual requirements.
In general, it is important for Barristers to maintain adequate
chambers from which they conduct their practice. Chambers enable
barristers to confer in a professional manner and in professional
circumstances, to have a location from which they may properly
carry out their work when out of Court, to maintain a location
at why they might be conveniently contacted, and to maintain the
various appurtenances and facilities such as library, telephone
and the like, which enable them to properly conduct their practices.
In exceptional cases, a barrister may not require chambers to
enable discharge of his or her duties in a professional manner.
However, in general, it is envisaged that most, if not all, Barristers
should conduct their practices from suitable chambers in order
that they comply properly with Rule 80.
In selecting chambers, Barristers should bear in mind that it
is important that the chambers be sufficiently respectable so
as not to detract from the good standing and repute of the individual
Barrister and of the Victorian Bar as a whole. In this respect,
it is sufficient for barristers to comply with Rule 80 by leasing
premises from Barristersí Chambers Limited, or by using premises
which are approved by The Victorian Bar Incorporated.
The requirements of each Barristerís practice vary in relation
to the amount of staff (if any) required by the Barrister to enable
that Barrister to properly conduct his or her practice. It is
important that Barristers be able to properly service the requirements
of their practices.
In this respect, it is sufficient for a barrister to comply with
Rule 80 by engaging a clerk licensed by The Victorian Bar Incorporated,
or to engage any other person who is sufficiently qualified, experienced
and competent to act as a Barristers clerk. The clerking system
has traditionally provided the basic infrastructure necessary
for a Barristerís practice. It has provided each Barrister with
a point at which they may be contacted by telephone, with a place
at which briefs might be delivered and messages left, and a person
with whom solicitors might readily communicate in order to ascertain
the Barristerís availability and negotiate fees. Further, a clerk
approved by The Victorian Bar Incorporated is entitled to receive
trust money on account of legal costs pursuant to s.177 of the
Legal Practice Act 1996.
(1) See also s149 of the Legal Practice Act.
(2) See also particular rules in cases of conflict
of interest or involving confidentiality (rules 68 & 69) and
also, in criminal matters, rules 162, 163 and 164.
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