The Ethics Committee publishes this bulletin for the assistance of counsel who are briefed to act for litigants pursuant to ss.71 and 72 of the Family Violence Protection Act 2008 (Vic) (‘the Act’). This bulletin seeks to address the difficulties that counsel may encounter when briefed by Victoria Legal Aid (VLA) or one of its external firms on a limited retainer solely to cross-examine a protected witness.
If VLA briefs counsel to undertake cross-examination pursuant to a referral under the Act, the scope of that brief is limited to the instructions provided on the brief.
From time to time, judicial officers have requested (or expressed an expectation) that counsel appear for a litigant for the entire proceeding, as opposed to the limited retainer for cross-examination.
It is not appropriate for a tribunal to require counsel to represent a client outside the scope of counsel’s brief. Impecunious litigants are not the responsibility of counsel.
The fact that counsel has been directed to act by a tribunal does not excuse counsel from compliance with the Rules, including Rules 101 to 104, which deal with the circumstances in which counsel must refuse to take a brief.
If counsel agrees to continue to represent the client beyond the scope of the VLA brief without an extension of the terms of that brief by VLA, counsel is no longer acting on a VLA brief and is instead acting directly for the client. If counsel elects to do so, the matters to which he or she must have regard include the following:
- Counsel must comply with Rule 22 and the other rules pertaining to direct access briefs.
- Counsel must be careful not to undertake solicitors’ work, including that found at Rule 13, and should bear in mind that work undertaken outside the scope of a barrister’s practice is not covered by the insurance policy issued by the Legal Practitioners’ Liability Committee.
- Counsel must bear in mind the provisions of Rules 57 (concerning the obligation to ensure that counsel performs work on time) and 104 (which concerns the acceptance of multiple briefs to appear on the same day).
Róisín Annesley QC
Chair Ethics Committee