3. Regulation of barristers

(a) Fundamental rules

Clyne v The New South Wales Bar Association (1960) 104 CLR 186

The rules which govern the conduct of members of a body of professional men, such as the Bar of New South Wales, may be divided roughly into two classes.

In the one class stand those rules which are mainly conventional in character. To say this is not to deny their importance from the point of view of the client. But they are designed primarily to regulate the conduct of members of the profession in their relations with one another. Many of these rules are reduced to writing, and they are from time to time interpreted, and perhaps modified to fit specific cases, by resolutions of the governing body of the profession.... Examples of this class in the case of the Bar are [a rule forbidding advertising and the ‘two counsel’ rule, both of which have since been substantially abrogated]. A breach of any of these rules is treated seriously, but would not warrant disbarment - at least unless it was shown to be part of a deliberate and persistent system of conduct.

Rules of the other class are not merely conventional in character. They are fundamental. They are, for the most part, not to be found in writing. It is not necessary that they should be reduced to writing, because they rest essentially on nothing more and nothing less than a generally accepted standard of common decency and common fairness. To the Bar in general it is more a matter of `does not' than of `must not'. A barrister does not lie to a judge who relies on him for information. He does not deliberately misrepresent the law to an inferior court or to a lay tribunal.... He does not, in cross examination to credit, ask a witness if he has not been guilty of some evil conduct unless he has reliable information to warrant the suggestion which the question conveys’

(b) Bar Rules

Advocacy Rules, rr 16-72
16, 17 Duty to client
18-20 Disinterestedness
21-31 Frankness in court
32-34 Delinquent or guilty clients
35-40 Responsible use of court process and privilege
41-42A Efficient administration of justice
43-50 Integrity of evidence
51-58 Duty to opponent
59-61 Integrity of hearings
62-72 Prosecutor's duties

Barristers’ Work, rr 74-80, 81

74. A barrister must confine the barrister's professional work to:

(a) appearing as an advocate;
(b) preparing to appear as an advocate;
(c) negotiating for the client with the opponent to compromise the case;
(d) representing the client in a mediation;
(e) giving legal advice;
(f) advising on documents to be used in the client's affairs;
(g) acting as a referee, arbitrator or mediator; and
(h) carrying out work properly incidental to the kinds of work referred to in (a)-(g).

75. A barrister must not, in the barrister’s professional work:

(a) commence proceedings or file process in any court on behalf of the client
in the barrister’s name;
(b) serve any process of any court;
(c) make any demand, by letter or otherwise, on behalf of the client in the barrister’s name, except for the purposes of work under Rule 74(c) and (d);and
(d) conduct correspondence on behalf of the client in the barrister’s name or deal on behalf of the client with any other person, unless:
(i) the correspondence is to seek information from a potential witness;
or
(ii) the dealing is a conference with a potential witness; or
(iii) it is for the purposes of work under Rule 74.

76. A barrister must take reasonable steps to avoid the possibility of the barrister becoming a witness in the case as a result of any correspondence conducted by the barrister or of any dealing by the barrister with persons other than the client.

77. A barrister must not, in the barrister’s professional work, hold, invest or disburse any funds for any other person.

Referral to solicitor

78. 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 74 and 75 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.

79. A barrister who provides information under Rule 78 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.

Disclosure to direct access client

80. A barrister who proposes to accept instructions directly from a person who is not a solicitor must inform the client in writing of:
(a) the effect of Rules 74 and 75;
(b) circumstances may require the client to retain an instructing solicitor at short notice;
(c) any other disadvantage suffered by the client if the client does not retain an instructing solicitor; and
(d) 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
(e) a fair description of the advocacy experience of the barrister.

Sole Practitioner Rules

81. 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 acts as a legal practitioner in the course of that employment; or
(c) as the employee of any person.