Direct Briefing - The New Regime

Tax Bar Association Ethics Seminar Series
Direct briefing - How to do it, when to do it and ethical considerations

Roisin Annesley* QC 7 June 2016

*Deputy Chair, Victorian Bar Ethics Committee

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11. Barristers' work consists of:

(a) appearing as an advocate;

(b) preparing to appear as an advocate;

(c) negotiating for a client with an opponent to compromise a case;

(d) representing a client in a mediation or arbitration or other method of alternative dispute resolution;

(e) giving legal advice;

(f) preparing or advising on documents to be used by a client or by others in relation to the client's case or other affairs;

(g) carrying out work properly incidental to the kinds of work referred to in (a)- (f); and

(h) such other work as is from time to time commonly carried out by barristers.

12. A barrister must be a sole practitioner, and must not:

(a) practise in partnership with any person;

(b) practise as the employer of any legal practitioner who acts as a legal practitioner in the course of that employment;

(c) practise as the employee of any person;

(d) be a director of an incorporated legal practice; or

(e) practise by or through an unincorporated legal practice.

13. A barrister must not, subject to rules 14 and 15:

(a) act as a person's general agent or attorney in that person's business or dealings with others;

(b) conduct correspondence in the barrister's name on behalf of any person otherwise than with the opponent;

(c) place herself or himself at risk of becoming a witness, by investigating facts for the purposes of appearing as an advocate or giving legal advice, otherwise than by:

(i) conferring with the client, the instructing solicitor, prospective witnesses or experts;

(ii) examining documents provided by the instructing solicitor or the client, as the case may be, or produced to the court;

(iii) viewing a place or things by arrangement with the instructing solicitor or the client; or

(iv) library research;

(d) act as a person's only representative in dealings with any court, otherwise than when actually appearing as an advocate;

(e) be the address for service of any document or accept service of any document;

(f) commence proceedings or file (other than file in court) or serve any process of any court;

(g) conduct the conveyance of any property for any other person;

(h) administer any trust estate or fund for any other person;

(i) obtain probate or letters of administration for any other person;

(j) incorporate companies or provide shelf companies for any other person;

(k) prepare or lodge returns for any other person, unless the barrister is registered or accredited to do so under the applicable taxation legislation; or

(l) hold, invest or disburse any funds for any other person

14. A barrister does not breach rule 13 by doing any of the matters referred to in that rule, without fee and as a private person not as a barrister or legal practitioner.

15. A barrister does not breach rule 13(a), (h) or (l) if the barrister becomes such an agent, is appointed so to act or becomes responsible for such funds as a private person and not as a barrister or legal practitioner.

16. 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 rules 11, 12, and 13 as they relevantly apply in the circumstances; and

(b) that, if it be the case, solicitors are capable of providing those services to that person.

22. A barrister who proposes to accept instructions directly from a person who is not a solicitor or officer of a government department or agency whose usual duties include engaging lawyers must:

(a) inform the prospective client in writing of:

(i) the effect of rules 11 and 13;

(ii) the fact that circumstances may require the client to retain an instructing solicitor at short notice, and possibly during the performance of the work;

(iii) any other disadvantage which the barrister believes on reasonable grounds may, as a real possibility, be suffered by the client if the client does not retain an instructing solicitor;

(iv) the relative capacity of the barrister in performing barristers' work to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructing solicitor to supply them; and

(v) a fair description of the advocacy experience of the barrister; and

(b) obtain a written acknowledgement, signed by the prospective client, that he or she has been informed of the matters in (a) above.

21. Nothing in these Rules shall be taken to oblige a barrister to accept instructions directly from a person who is not a solicitor.

105. A barrister may refuse or return a brief to appear before a court:

(a) if the brief is not offered by a solicitor;

101. A barrister must refuse to accept or retain a brief or instructions to appear before a court if:

(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;