Chapter 10 Common Grounds of Ethical Complaint or Negligence Claim

Chapter 10 Common Grounds of Ethical Complaint or Negligence Claim Ethical Complaints 150 Negligence Claims 151 General Guidelines 152 Examples of Ethical Issues 154 Independence 155 Solicitor s work 155 Unreasonable delay 157 Duty to court 158 Vilification 161 Direct access 162 Outstanding fees 165 Conflict of interest 167 Abusive/rude behaviour 168 149

150 GOOD CONDUCT GUIDE Ethical Complaints 10.1 In 2004, the Ethics Commi4ee conducted 120 investigations into the ethical conduct of barristers either as a result of a complaint or on its own motion. Of those 120 investigations, the Ethics Commi4ee issued four reprimands with the consent of counsel; issued four cautions, decided to take no further action in respect of one barrister whom it considered the Tribunal 1 would find guilty of unsatisfactory conduct, and referred six ma4ers to the Tribunal. The remaining ma4ers were dismissed either pursuant to s.141(1) of the 1996 Act as lacking in substance, vexatious or misconceived, or pursuant to s.151(5) of the 1996 Act, the Ethics Commi4ee was satisfied that there was no reasonable likelihood that the Tribunal would find any charge sustained. In 2005, the Ethics Commi4ee conducted 104 investigations into the ethical conduct of barristers. Of those 104 investigations, the Ethics Commi4ee issued four cautions and one reprimand. Six ma4ers were referred to the Tribunal for determination. The remaining matters were dismissed either pursuant to s.141(1) or s.151(5) of the 1996 Act. 2 10.2 The conduct giving rise to the investigations constituted the following (in order of most frequent to least): (a) poor case handling and advice; (b) failing to follow or seek instructions; (c) abusive/rude behaviour; (d) lack of preparation; (e) duress and intimidation; (f) pressure to se4le; (g) conflict of interest; (h) grossly excessive fees; (i) misleading the court; (j) breach of confidentiality; and (k) delay. 10.3 For the same period, the areas of practice which received the most complaints were: (a) family law/de facto; (b) criminal law/intervention/compensation; (c) commercial law; (d) building and construction; 1. The Tribunal for the purposes of this chapter is the Legal Profession Tribunal. 2. Figures for the 2004 and 2005 years provided by the Ethics Commi4ee.

COMMON GROUNDS OF ETHICAL COMPLAINT OR NEGLIGENCE CLAIM 151 (e) WorkCover/Commcare; (f) personal injury; (g) bankruptcy/insolvency; and (h) probate/wills/tfm. Negligence Claims 10.4 Since becoming the insurer for the Bar in July 2005, the Legal Practitioners Liability Commi4ee ( the LPLC ) has received 25 notifications from barristers under their insurance policies. The insurer has identified the following incidents as those most likely to occur and require indemnity for barristers. 3 Litigious Matters Non-litigious Matters Miscellaneous Failure to consider/ investigate cause of action Failure to follow instructions/exceeding authority Deficient pleadings Missing time limits Inadequate preparation Advocacy in court or intimately connected with court work Communication failures Personal costs order Settlement of litigation Dissatisfied litigant Negligent advice/ opinion Negligent drafting Excessive fees fee claim/counterclaim Delay in attending to or returning brief Late notice of unavailability Breach of ethics/ professional conduct rules Failure of office systems 10.5 The underlying causes of negligence claims against barristers, as identified by the insurer, are: (a) poor communication; (b) poor engagement management; 3. Information provided by the Legal Practitioners Liability Commi4ee.

152 GOOD CONDUCT GUIDE (c) failure to manage the legal issues; (d) simple oversights; (e) lack of documented trail of instructions and advice; and (f) dishonesty/reckless indifference. General Guidelines 10.6 The purpose of this chapter is to provide practical advice and strategies for the avoidance of ethical complaints and related negligence claims. Whilst it is difficult to provide practical advice which is relevant to every situation, the following general guidelines should always be observed: (a) act honestly; (b) do not engage in conduct that is prejudicial to the administration of justice; (c) do not engage in conduct which is likely to: (i) diminish public confidence in the legal profession. Public confidence in the legal profession is likely to be diminished, and the legal profession is likely to be brought into disrepute if barristers, in their professional and personal lives, fail to uphold the standards of behaviour that they seek to prosecute and defend in their professional lives. Barristers should not: A engage in dishonest or illegal activities; B wilfully, recklessly or repeatedly fail to meet their obligations to the Australian Taxation Office; C wilfully avoid payment to creditors; or D engage in conduct which vilifies others on the basis of their race, religion, culture, gender or sexual preference. (ii) diminish public confidence in the administration of justice. Public confidence in the administration of justice is likely to be diminished if barristers: A prosecute or defend cases without the proper exercise of independent forensic judgment; B appear in court inadequately prepared; C are overly familiar with the court, opposing counsel, instructing solicitors and/or clients during a proceeding; D condescend to personal a4acks on the court, opposing counsel, witnesses, parties or jurors; or

COMMON GROUNDS OF ETHICAL COMPLAINT OR NEGLIGENCE CLAIM 153 E erode, question or challenge the power of the court outside the judicial system; (d) answer correspondence from the Ethics Commi4ee and/or the Commissioner; Failure to answer correspondence from the Ethics Commi4ee and/or the Commissioner is a breach of the Rules 4 and a breach of the Act 5 capable of constituting unsatisfactory conduct. It is sometimes the case that barristers, upon receipt of a le4er advised a complaint, either: (i) fail to answer it because the barrister assumes that the Ethics Commi4ee or the Commissioner will be able to see that the claim has no merit, and therefore there is no need to respond; or (ii) knowing that their conduct may have been less than exemplary, put the le4er and the need to reply into the too hard basket, thus compounding the problem. Many a barrister has received a fine from the Legal Profession Tribunal for failing to answer correspondence from the Ethics Commi4ee or the Legal Ombudsman; (e) communicate with clients; Barristers should ensure as far as possible that clients understand the issues of the case, the costs and the likely outcome. Put all advice in writing. If a barrister is aware that the client has difficulty reading or understanding English, arrangements should be made for a conference with the instructing solicitor and a qualified interpreter in order to explain the advice in person. Provide advice early and at reasonable intervals as the ma4er proceeds. If a barrister has doubts about a client s likelihood of success, provide that advice preferably in writing; (f) stay on top of fees; When marking fees provide more detail rather than less as to the nature of the work undertaken. The new disclosure requirements under the Act require a barrister to provide an estimate as to the likely costs that will be incurred. This is an ongoing obligation and it is necessary for a barrister to advise the instructing solicitor and/or client of any major change in any estimate provided and the reason for such change. 6 Barristers should avoid unpaid fees accruing in any ma4er. Issues as to unpaid fees can sour a professional relationship between solicitor and barrister; they can jeopardize the client s interests in an ongoing ma4er and they 4. Rule 74. 5. s.4.4.11(1). 6. ss.3.4.10; 3.4.13; 3.4.16.

154 GOOD CONDUCT GUIDE can place a barrister under financial strain. It is not uncommon for a barrister who issues proceedings for the recovery of fees to receive a counterclaim for negligence or breach of contract. It is be4er to avoid any need for litigation by ensuring payment is received within reasonable proximity to the work done; (g) have good manners; Barristers should listen to clients, solicitors, judges and fellow counsel. Avoid rude and offensive behaviour. Keep your temper. Avoid personal comments at the Bar table. Retain your independence. (h) do work in a timely manner. A barrister should not take on work if he or she cannot finish it with reasonable expediency. A barrister should not take on work that is beyond his or her capabilities. A barrister should not be afraid to suggest retaining silk in a ma4er, even if the barrister has been at the Bar for 15 years. Talk to other barristers about cases. Learn from them. Seek out the advice and assistance of senior members of counsel. Examples of Ethical Issues 10.7 Some of the following examples are real complaints or issues faced by barristers in recent years. Others have been created to illustrate particular points. Any use of any name is for narrative purposes only and is not a reference to any member of the Bar. They are provided as examples only and for the purpose of guidance. Any barrister concerned about a particular ethical issue should seek specific guidance from the Ethics Commi4ee or independent advice. Particular rules have been highlighted with particular examples. Individual rules generally do not stand alone. When providing rulings or investigating complaints the Ethics Commi4ee and the Commissioner will look at the conduct in the context of the Rules as a whole. For example, barristers who appear as mediators are generally bound by the Rules. However, not all rules apply when a barrister is acting as a mediator. 7 7. Rule 5A states that the following rules do not apply to a barrister acting as a mediator: (a) Rule 10 73 i.e. Advocacy Rules including duty to client, duty to court, communications, media, confidentiality and conflicts; and (b) Rules 84 112 i.e. cab rank, requirement of separate briefs, briefs which must/may be refused, handing a brief to another barrister, retainers and special retainers. (c) Rules 126 192 i.e. instructions from a solicitor, co advocacy in other states, criminal ma4ers, direct access, legal advice/charitable work.

COMMON GROUNDS OF ETHICAL COMPLAINT OR NEGLIGENCE CLAIM 155 Independence 10.8 Conduct which may contravene Rules 119 and 120 is of regular concern to the Ethics Commi4ee. 10.9 Rule 119 states that a barrister must not use or permit the use of the professional qualifications 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. Example Counsel had a personal interest in a property company. Counsel sent a facsimile transmission to a government body using his le4erhead. A director of the property company complained to the Ethics Commi4ee that in sending the facsimile on le4erhead, counsel was in breach of Rule 119. Counsel responded to the complaint that he used his le4erhead because he wanted the government body to reply to his business address simply as a ma4er of convenience. Counsel stated that he did not intend by the use of his le4erhead to procure any private advantage. The Ethics Commi4ee found that there was a reasonable likelihood that the Tribunal would find counsel guilty of unsatisfactory conduct within the meaning of the Act. 8 Solicitor s work 10.10 Rule 120 provides that a barrister shall not act as, or perform the work of, a solicitor, save as permi4ed by the Rules. 10.11 Solicitor s work involves: (a) the issuing of process and the filing and serving of documents; (b) corresponding on behalf of a client with the other party and witnesses; 8. The Ethics Commi4ee was satisfied that counsel was generally competent and diligent and there being no substantiated complaint about his conduct within the last five years resolved to take no further action against counsel in accordance with section 151(3)(c) of the 1996 Act.

156 GOOD CONDUCT GUIDE (c) effecting the engrossment of deeds or other documents; (d) preparing briefs; (e) paying money into court; (f) engaging and instructing expert witnesses; and (g) writing le4ers of demand. 10.12 It is not uncommon for junior members of the Bar to be briefed as part of a discovery team by firms conducting class act litigation or lengthy complex litigation. Many barristers are tempted to accept such work not only for the regular remuneration but also in the hope of obtaining a junior brief to appear in the trial of the proceeding. Barristers accepting briefs which require the barrister to sii through boxes of documents in order to determine which documents are discoverable and to identify such documents for the purpose of creating an affidavit of documents run the risk of acting in contravention of Rule 120. Whether such work is in contravention of Rule 120 is likely to depend on the size of the task and the manner in which it is performed. Barristers who are briefed to advise whether a number of specific documents are discoverable, in the context of a drai affidavit of documents having been prepared, are less likely to be in breach of Rule 120. Example Counsel received a brief from an interstate legal practitioner to draw an application to set aside judgment in the Magistrates Court. Counsel completed the document. The instructing solicitor requested the barrister to file the application with the Registry and the barrister was sent a cheque for the filing fees. Counsel intended to file the document as requested. In discussion with his mentor, the mentor advised that it was inappropriate work for a barrister and would be in contravention of Rule 120. The barrister advised the interstate practitioner that he was unable to file the document, that he was unable to receive funds on behalf of the client to pay the filing fee, and that it was necessary for the solicitor to retain a Victorian solicitor as agent. The barrister provided the names and telephone numbers of three solicitors whom he thought could assist the legal practitioner with filing of the document.

COMMON GROUNDS OF ETHICAL COMPLAINT OR NEGLIGENCE CLAIM 157 Unreasonable delay 10.13 Rule 14 states that 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. A barrister is entitled to refuse a brief if the barrister s personal or professional commitments prevent the barrister from being able to advance a client s interests to the best of the barrister s skill and diligence. 9 Example 1 Counsel was briefed to amend a Statement of Claim. The brief was delivered in January. Counsel undertook to complete the brief in February. Despite numerous requests by the instructing solicitor, counsel failed to return the brief. The instructing solicitor later complained to the Ethics Commi4ee. An investigation was commenced and initially counsel failed to respond to the Ethics Commi4ee as required. 10 Thereaier, the Ethics Commi4ee again wrote to counsel. This time it required counsel to respond to its correspondence and to return the brief to the instructing solicitor by the first day of June. Counsel responded to the Ethics Commi4ee and returned the brief at the end of June. The Ethics Commi4ee was satisfied that there was a reasonable likelihood that counsel would be found guilty of unsatisfactory conduct by reason that: (a) he failed to return a brief to his instructing solicitor within a reasonable time of being requested to do so; and (b) he failed to reply to a le4ers from the Ethics Commi4ee as required. Charges were issued against the barrister in the Tribunal. Counsel pleaded guilty to three charges of unsatisfactory conduct and was reprimanded and fined $250.00 on each charge and ordered to pay costs of $1000.00. 9. Rule 86(b). 10. Rule 74; s.149 Legal Practice Act 1996.

158 GOOD CONDUCT GUIDE Example 2 A barrister was instructed to drai a statement of claim. In November the client a4ended a conference in chambers and provided the barrister with a large amount of information, both wri4en and oral. The barrister congratulated the client on his thoroughness. The barrister informed the client that he would receive the statement of claim shortly. The barrister did not finalise the statement of claim until approximately May the following year, despite the fact that he had explicit instructions to expedite the ma4er. The Ethics Commi4ee was satisfied that there was a reasonable likelihood that the Tribunal would find the barrister guilty of unsatisfactory conduct and issued a reprimand. Duty to court 10.14 The duties owed by a barrister to the court are discussed in chapter 3. In summary a barrister owes the following duties to the court: (a) honesty and fairness; (b) competence and diligence; (c) the exercise of independent forensic judgment; and (d) courtesy. Example 1 Counsel was briefed to appear on behalf of an applicant in an appeal to the Federal Magistrates Court from a decision of the Refugee Review Tribunal. Counsel had no prior involvement in the ma4er. The brief was received the day before the ma4er was listed for final hearing. Wri4en contentions of fact and law had been prepared on behalf of the client by previous counsel. It appeared that the transcript was not available to previous counsel at the time he prepared the client s contentions. The respondent s contentions contained references to key sections of the transcript of the previous hearing. Counsel spent several hours preparing the appeal. Based on the consideration of all materials and authorities and his experience in appearing in

COMMON GROUNDS OF ETHICAL COMPLAINT OR NEGLIGENCE CLAIM 159 many other appeals in the jurisdiction, he formed the opinion that there was no arguable case for the applicant. Counsel informed the instructing solicitor that in his opinion there was no arguable case and advised that the client should withdraw the appeal. Further, counsel said he proposed to return the brief without fee. The instructing solicitor sought instructions from the client. Subsequently the instructing solicitor telephoned counsel informing him that, notwithstanding counsel s advice, the client wished to continue with the appeal. The barrister sought the advice of the Ethics Commi4ee as to whether or not he could return the brief given the proximity of the trial. 11 The Ethics Commi4ee ruled that the barrister could return the brief pursuant to Rule 98(b) and further stated that the barrister should return the brief accompanied by a memorandum stating the reasons why it was being returned. It was recommended that the barrister draw the instructing solicitor s a4ention to Rules 16 and 35. 12 Example 2 Smith and Jones had been opposed in a contested ma4er which had concluded and the decision reserved. On the day the matter concluded and subsequent to the decision being reserved, Jones sent a supplementary memorandum to the court without informing Smith of his intention to do so. Jones provided a copy of the supplementary memorandum to Smith. Smith made complaint that Jones had communicated with the court, on a ma4er of substance, in breach of Rule 54. Rule 54 states that a barrister must not communicate in the opponent s 11. Rule 105 provides that a barrister who is permi4ed to return a brief must do so in enough time to give another legal practitioner a proper opportunity to take over the case. 12. Rule 16 states that a barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgment called for during the case independently, aier appropriate consideration of the client s and the instructing solicitor s desires where practicable. Rule 35 states that 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.

160 GOOD CONDUCT GUIDE absence with the court concerning any ma4er of substance, subject to exceptions within the rule. Jones had apologised to Smith for his conduct. Smith forwarded a memorandum to the court requesting that Jones supplementary memorandum be disregarded. The Ethics Commi4ee found that there was a reasonable likelihood that the Tribunal would find Jones guilty of unsatisfactory conduct within the meaning of the 1996 Act and in breach of Rule 54. 13 Example 3 A solicitor lodged a complaint with the Ethics Commi4ee in which it was alleged that counsel had sent a le4er to a member of VCAT that was: (a) defamatory of the solicitor; (b) inappropriate as counsel was no longer briefed in the proceeding; and (c) calculated to influence VCAT in relation to a proceeding currently before it. Following an investigation, the Ethics Commi4ee established that a number of le4ers and telephone calls had been made by the barrister to the Tribunal. The Ethics Commi4ee was satisfied that there was a reasonable likelihood that the Tribunal would find counsel guilty of misconduct or alternatively unsatisfactory conduct. Charges were laid against the barrister in the Tribunal. Counsel was found guilty of misconduct by the Tribunal in that he wilfully and recklessly contravened Rules 4 and 54. 14 Counsel was reprimanded and ordered to pay a fine of $500.00. 13. The Commi4ee was satisfied that Jones was generally competent and diligent; and there being no substantiated complaint (other than the instant complaint) about his conduct within the last five years resolved to take no further action against Jones in accordance with section 151(3)(c) of the 1996 Act. 14. Rule 54 prohibits a barrister, save in an ex parte application, from communicating to a court concerning any ma4er of substance without the prior communication from the court, and/or consent of the barrister s opponent.

COMMON GROUNDS OF ETHICAL COMPLAINT OR NEGLIGENCE CLAIM 161 Further, counsel was required to undertake a course of counselling and education on the ethics of barristers and ordered to pay costs of $3,800.00. The barrister appealed against the decision to the Full Tribunal. On appeal counsel was found guilty of unsatisfactory conduct in that he contravened Rule 4. The Full Tribunal found that Rule 54 did not apply as counsel no longer acted for the client. Further, at the time of writing the le4ers counsel did not have an opponent. The Full Tribunal did not require counsel to pay the fine and otherwise confirmed the orders made by the Registrar. Vilification 10.15 Rule 195 states that a barrister shall not, in any professional context, engage in conduct which is calculated to disparage, vilify or insult another person on the basis of that person s gender, sexual preference, race, colour, descent, national or ethnic origin or religion. Example Jones issued proceedings for recovery of his fees. Smith appeared on behalf of the defendant. Jones was called to give evidence. Smith asked a question in cross examination that was personally insulting and wholly irrelevant and related to Jones religion. Jones lodged a complaint against Smith alleging that Smith s conduct in asking the question was in contravention of Rule 195. The Ethics Commi4ee was satisfied that there was a reasonable likelihood that the Tribunal would find Smith guilty of unsatisfactory conduct, in that the conduct was: (a) conduct in the course of engaging in legal practice which would be regarded by a legal practitioner of good standing as being unacceptable, because it was: (i) conduct unbecoming a legal practitioner; and/or (ii) unprofessional conduct; and (b) in breach of Rules 4(a) and (c) and Rule 195.

162 GOOD CONDUCT GUIDE Direct access 10.16 Solicitors play an important role in any litigation. They are responsible for doing all the things set out in paragraph 10.11. In the absence of a solicitor those responsibilities fall upon the client. Since the removal of the prohibition on direct access ma4ers, the Ethics Commi4ee has noticed an increased number of complaints concerning the conduct of counsel arising from direct access ma4ers. 10.17 Prior to accepting a brief in a direct access ma4er, counsel should familiarize themselves with the direct access rules and the disclosure requirements of the Act. Barristers acting on a direct access ma4er are required to keep a wri4en case record, and to retain copies of documents. 15 It is recommended that counsel acting in a direct access ma4er make a comprehensive note of all conferences with the client, including telephone conferences, recording in detail instructions provided and advice given. 10.18 Barristers acting in direct access ma4ers should be careful not to contravene Rule 120 in respect of performing solicitor s work, despite the fact that the client may be unfamiliar with the court process and that the task might be performed more efficiently by the barrister. Example 1 Counsel agreed to act on a direct access basis in a ma4er before VCAT. Prior to commencing work, counsel did not execute the standards terms of engagement as required by Rule 176. 16 Counsel prepared points of defence, affidavits and witness statements which stated that the documents were prepared by [counsel s name] and provided counsel s contact details. The following documents were also forwarded to VCAT: (a) a facsimile message stating [counsel s name] provide herewith by way of service ; (b) a le4er from counsel stating I refer to the above and provide herewith for filing ; and 15. Rule 174, Rules165 177 and ss.3.4.9 3.4.18 inclusive. 16. Rule 176 states that a barrister shall not commence any work on a direct access ma4er 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.

COMMON GROUNDS OF ETHICAL COMPLAINT OR NEGLIGENCE CLAIM 163 (c) a le4er from counsel to VCAT enclosing an affidavit in support of the application. A reading of the le4er would give the appearance that counsel was the nominated address for receiving documents by way of service in the proceeding. The Ethics Commi4ee formed the opinion that the Tribunal would find the barrister guilty of unsatisfactory conduct for breach of Rules 176 and 173. Rule 173 prohibits a barrister in a direct access ma4er from delivering, filing or lodging any document as the legal practitioner on the record in any court or tribunal. Example 2 Jones was briefed by a solicitor to a4end a compulsory conference at VCAT in a ma4er in the civil claims list. He had a conference with the client and appeared at VCAT as briefed. Aier the appearance Jones sent a memorandum to the instructing solicitor informing him that unless advised otherwise, the brief would be retained in case a further appearance or advice was required. Shortly thereaier the instructing solicitor informed Jones that the ma4er had been listed for hearing for three days in two months time and enquired as to whether he was available. Jones advised that it would be marked in as a tentative booking. The next day Jones received a telephone call from the client. The client informed him that he had not been feeling confident in how the solicitor was conducting the case and had wri4en to the solicitor expressing his concerns. The client subsequently received an email from the solicitor saying that the terms of the retainer allowed the solicitor to withdraw from the ma4er on reasonable notice and he was now giving the client such notice. Further that upon payment of outstanding fees and a proper request, the solicitor would return the file to the client. The client asked Jones whether he could brief him directly. Jones sought the guidance of the Ethics Commi4ee. Jones submi4ed the following questions:

164 GOOD CONDUCT GUIDE (a) is my ability to accept the direct access brief affected by having been previously briefed by the solicitor; (b) am I required to give the client the information specified in s.86 of the 1996 Act; and (c) what is the proper process for me to follow in relation to the documents delivered to me by the solicitor and still retained by me? The Ethics Commi4ee advised as follows: (a) that it was necessary for Jones to confirm with the instructing solicitor whether or not the retainer was terminated and, if so, he should return the brief immediately; (b) Jones should not retain any papers that had been delivered by the solicitor. The brief was a product of the retainer between the solicitor and counsel and once the solicitor s retainer with the client was terminated, then the retainer between the solicitor and counsel was also likely to be terminated. Further, any direct access brief should come directly from the client and not by retaining the brief which is the manifestation of counsel s retainer with the former solicitors; (c) if the client receives the file back from the solicitor and wants to brief Jones directly, he must carefully consider whether he can do so in the light of Rules 168 and 175. In accepting a direct access brief counsel must give consideration as to who is going to perform the administrative tasks (arranging witnesses, gathering evidence, correspondence to the other side and filing of documents). The fact that a solicitor has been involved in the past may indicate that a solicitor s intervention has been considered necessary and should prompt some caution by Jones in accepting a brief on a direct access basis; and (d) Jones must enter into the standard terms of agreement and must also comply with s.86 of the 1996 Act. 17 17. Now s.3.4.9 of the Legal Profession Act 2004.

COMMON GROUNDS OF ETHICAL COMPLAINT OR NEGLIGENCE CLAIM 165 Example 3 Smith was briefed to appear on behalf of a client in a determination process under a loan agreement entered into between the client and three other parties. The determination was due to be carried out by a forensic accountant. The loan agreement was also the subject of a significant Supreme Court proceeding, in which Smith did not hold a brief. On the eve of the due date for final submissions, the client s solicitors ceased to act due to outstanding fees. The client was experiencing financial difficulty. The client requested Smith to represent him on a direct brief basis. Smith had some reservations about doing this and having discussed the issue with other members of counsel sought a ruling from the Ethics Commi4ee. The Ethics Commi4ee ruled that Smith should not undertake the ma4er on a direct access basis. Not only did it appear to be part of an ongoing ma4er arising from Supreme Court proceedings, it was also a complicated ma4er, requiring detailed instructions. In the opinion of the Ethics Commi4ee, Smith should insist on a solicitor being retained in the ma4er because: (a) the ma4er was contested; (b) it would take more than one day; and (c) it required the draiing of affidavits and lengthy submissions. Outstanding fees 10.19 The new disclosure provisions in the Act will hopefully go a long way to avoiding fees disputes. It should no longer be the case that clients or instructing solicitors are surprised by the amount of counsel s fees or the basis on which they are calculated. Unfortunately there is no guarantee that the new legislation will ensure that counsel are paid in a timely manner or in accordance with any costs agreement. Barristers should not allow unpaid fees to accumulate to the point where the failure to pay them becomes an embarrassment to the barrister or to the instructing solicitor. When an impasse develops in respect of unpaid fees, it is oien useful to get the barrister s clerk involved not only does the clerk have a vested interest in the payment of the fees,

166 GOOD CONDUCT GUIDE solicitors might feel more comfortable discussing money ma4ers with the clerk rather than directly with the barrister. Example Counsel was briefed to appear with senior counsel in a proceeding on behalf of three out of ten defendants. Counsel s retainer with the client provided that he was to be paid a daily fee of $4,000.00, payable in advance into the instructing solicitor s trust account. On the twenty second si4ing day of the trial, counsel s fees were $30,000.00 in arrears. Upon enquiry of his instructing solicitor, counsel was advised that the instructing solicitor only held $10,000.00 in trust on account of his fees, and further that the clients had run out of money to fund the proceeding. The solicitor informed counsel that he would not agree to be responsible for the payment of counsel s fees. Counsel sought a ruling from the Ethics Commi4ee whether, pursuant to Rule 96(b), he could refuse to retain the brief. 18 The Ethics Commi4ee considered the request and was concerned that there would be li4le time to satisfy Rule 98(c). Rule 98(c) allows counsel to return a brief where fees have not been paid, and have remained unpaid aier reasonable notice by the barrister of the barrister s intention to return the brief for that reason. Counsel was advised to give notice to the instructing solicitor and to the client to bring payments up to date in accordance with the fee agreements by a certain date, and if that did not occur, then he could return the brief. 10.20 In the above example, at the time counsel sought the ruling, the case was almost finished. It would have been preferable for all parties for counsel to have acted earlier when the fees first fell into arrears. At that time counsel could have given notice in accordance with Rule 98(c) and avoided the fees accruing to $30,000.00. Alternatively the clients may have been forced to face the economic realities of the litigation sooner and entered into an appropriate se4lement with the other party. 18. Rule 96(b) states that a barrister may refuse to accept or retain a brief if the barrister has reasonable grounds to doubt that the fees will be paid reasonably promptly or in accordance with any agreement as to costs made with the solicitor or client.

COMMON GROUNDS OF ETHICAL COMPLAINT OR NEGLIGENCE CLAIM 167 Conflict of interest 10.21 It is not unusual for barristers, particularly those who practice in specialised jurisdictions, to come into contact with former clients, witnesses or opposing parties from time to time. A barrister may accept a brief and subsequently realise that he or she has acted in a proceeding against the client. In these circumstances the barrister must be careful to ensure that as a result of the previous experience, the barrister has not received some knowledge that would be inconsistent with the full and proper presentation of the client s case. 10.22 There is also an exception to the cab rank rule 19 which permits a barrister to refuse to accept or to retain a brief in circumstances where past experience of a particular client or essential witness is such as to give the barrister good reason to believe, and the barrister does in fact believe, that his or her performance in the conduct of the proceeding would be adversely affected. 20 Example Jones was briefed to act for the plaintiff, Brown, in a mediation in the Federal Court concerning the termination of Brown s employment. If the mediation was unsuccessful, Jones was likely to be retained at the trial of the ma4er. On examining the papers Jones: (a) formed the opinion that the credit of Brown would be relevant in the outcome of the trial and would no doubt be raised at the mediation; and (b) realised that there was a connection between Brown and a former client. Approximately three years previously Jones had acted for a builder in a domestic building dispute. Brown was a witness called on behalf of the other party in the domestic building dispute. In that proceeding, the credit of Brown was a4acked. Jones cross examined Brown for two days. Ultimately the building dispute was resolved and no adverse finding was made against Brown. The issues in the former ma4er were not in any way relevant to the present proceedings. Jones did not feel any embarrass 19. Rule 86. 20. Rule 96(i).

168 GOOD CONDUCT GUIDE ment accepting the brief, however, as a precaution he sought the advice of the Ethics Commi4ee. The Ethics Commi4ee saw no impediment to Jones retaining the brief. Abusive/rude behaviour 10.23 The responsibility of counsel in representing the client may require him or her to prosecute the client s case fearlessly and with vigour and determination. At the same time counsel has an overriding duty to the court, to the standards of the profession and to the public. This overriding duty requires counsel to contribute to the orderly, proper and expeditious trial of cases in court. In ex parte Bellanto; re Prior, 21 aier acknowledging the necessity for courage and firmness on the part of counsel, the court observed that courage and courtesy should go hand in hand. 10.24 Barristers should observe courtesy between all practitioners and the court. Barristers should be polite but firm with clients. Example A barrister retained on behalf of the plaintiff in a proceeding was in possession of the plaintiff s discovered documents. 22 Counsel s instructing solicitor had failed to comply with a notice to produce the plaintiff s discoverable documents. The defendant s solicitors threatened to make an application to compel production. Counsel s instructor asked him to make arrangements with the solicitor acting for the defendant to allow inspection of the plaintiff s discoverable documents. 23 It also happened that particulars of the defendant s counter claim were outstanding. 21. [1963] 63 S.R. (NSW) 190 at 204. See also Lewis v Ogden (1984) 153 CLR 682. 22. Counsel should avoid retaining possession of original documents to avoid inadvertent marking of the document or loss of document and to avoid involvement in administrative tasks or solicitors work. 23. Although not an issue in this complaint, making arrangements for the inspection of documents is an administrative task and involves counsel dealing with the opposing solicitor in the absence of his/her opponent. In contacting the opposing solicitor to arrange discovery, counsel acted in contravention of Rule 120 and Rule 52.

COMMON GROUNDS OF ETHICAL COMPLAINT OR NEGLIGENCE CLAIM 169 Counsel telephoned the defendant s solicitor and informed her that he would a4end at their office to deliver the plaintiff s discoverable documents and to inspect the defendant s documents. The defendant s solicitor complained to the Ethics Commi4ee that on the occasion of delivery of the documents, counsel had verbally abused her with a raised voice, in that counsel had repeatedly demanded the particulars of the counterclaim in a loud and aggressive manner and threatened to make an application for the particulars. The Ethics Commi4ee was satisfied that the conduct in the terms as stated in the complaint amounted to unsatisfactory conduct in that it was: (a) conduct in the course of engaging in legal practice which would be regarded by a legal practitioner of good standing as being unacceptable, because it was: (i) conduct unbecoming a legal practitioner; and/or (ii) unprofessional conduct; and (b) conduct which was likely to diminish public confidence in the legal profession or in the administration of justice or otherwise bring the legal profession into disrepute. Furthermore, the Ethics Commi4ee observed that counsel ought not to have been delivering discoverable documents to the defendant s solicitors as that task amounted to the work of a solicitor.