New Barristers Rules take effect on 6 January 2014

11/12/2013

A new version of the New South Wales Barristers’ Rules was Gazetted on Friday, 6 December replaces the version gazetted on 8 July 2011. It mirrors the amendments made to the uniform national rules of conduct prepared and approved by the Australian Bar Association, the peak body for all Australian barristers.

The new Rules will take effect on 6 January 2014.

Click here to view the Rules in their entirety clearly showing the changes. A summary of the amendments and additions appear below.

Amendments

The new Rules incorporate amendments to clauses 17(f), 24B, 36, 78, 88A, 95(b), 95(j), 96(b), and 99(l), as follows:

Clause 17(f) – Addition of the words ‘commence proceedings or file or…’ before the words ‘…serve any process of any court’.

Clause 24B – Addition of the words ‘…or officer of a government department or agency whose usual duties include engaging lawyers…’ after the words ‘A barrister who proposes to accept instructions directly from a person who is not a solicitor…’

Clause 36 – Addition of the words ‘…any apparent…’ between the words ‘A barrister must inform the court of…’ and ‘…misapprehension by the court as to…’

Clause 78 – Deletion of the word ‘…learns…’ and addition of the words ‘…is informed by the client or by the witness…’ between the words ‘A barrister who, as a result of information provided by the client or a witness called on behalf of the client,…’ and ‘…during a hearing or after judgment…’.

Clause 88A – Deletion of the words ‘provided that…’ at the beginning of the clause. Addition of the words ‘…rule 88(c)…’ between the words ‘’…on any ground within…’ and ‘…(iii), (iv) or (v),…’. Addition at the end of the clause of the words ‘…unless the interests of justice would be harmed if such grounds were revealed to the opponent.’.

Clause 95(b) – Addition of the words ‘…or otherwise…’ between the words ‘the client’s interest in the matter…’ and ‘…is or would be in conflict with…’.

Clause 95(j) – Addition of the following at the end of the clause ‘…, unless the hearing is before the High Court of Australia sitting all available judges;’.

Clause 96(b) – Addition of the words ‘…or retaining…’ between ‘…approves of the barrister accepting…’ and ‘…the brief after the barrister…’.

Clause 99(l) – Addition of the words ‘…personal or business…’ between the words ‘…is to appear before a judge whose…’ and ‘…relationship with the barrister…’. Addition of the following at the end of the clause ‘…give rise to the apprehension that there may not be a fair hearing;’.

  Additional clauses

The new Rules incorporate the addition of new clauses 40A, 40B, 40C, 88(c)(v), 115, 116, and 117 and definitions in clause 119 for the terms ‘discrimination’, ‘sexual harassment’, and ‘workplace bullying’. The new clauses are set out below.

40A.It is the duty of a barrister representing a person charged with a criminal offence:

(a) to advise the client generally about any plea to the charge; and (b) to make clear that the client has the responsibility for and complete freedom of choosing the pleas to be entered.

40B. For the purpose of fulfilling the duty in rule 40A, a barrister may, in an appropriate case, advise the 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 to the extent that the client is viewed by the court as cooperating in the criminal justice process.

40C. Where a barrister is informed that the client denies committing the offence charged but insists on pleading guilty to the charge, the barrister;

(a) must advise the client to the effect that by pleading guilty, the client will be admitting guilt to all the world in respect of all the elements of the charge; (b) must advise the client that matters submitted in mitigation after a plea of guilty must be consistent with admitting guilt in respect of all of the elements of the offence; (c) must be satisfied that after receiving proper advice the client is making a free and informed choice to plead guilty; and (d) may otherwise continue to represent the client.

88(c)(v) the prosecutor, having the responsibility of ensuring that the prosecution case is presented properly and presented with fairness to the accused, believes on reasonable grounds that the interests of justice would be harmed if the witness was called as part of the prosecution case.

115. A barrister shall not give an undertaking to the court on behalf of a solicitor or a client without express authority of the person concerned.

116. A barrister shall not disclose to the court, whether in submissions, 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; or (d) unless disclosure is required by the Court.

ANTI-DISCRIMINATION AND HARASSMENT

117. A barrister must not in the course of practice, engage in conduct which constitutes:

(e) discrimination; (f) sexual harassment; or (g) workplace bullying.

New definitions

‘discrimination’ means discrimination that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation.

‘Sexual harassment’ means harassment that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation.

‘Workplace bullying’ means behaviour that could reasonably be expected to offend, intimidate, degrade, humiliate, isolate or alienate a person working in a workplace.

20 December 2013

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