Issues:

• Scope of the duty.
• Immunity of an advocate.
• Confidentiality.
• Conflict of interest.

Desired Outcomes:

• An appreciation of what is constituted by a barrister’s duty to the client.
• Under what circumstances a barrister is or is not immune from suit for preparation of a matter or conduct in court.
• The “tension” between the duty of confidentiality to a client and the administration of justice.
• An understanding of the issues relating to a barrister’s conflict of interest – when the conflict arises and how to deal with the conflict.

1. A barrister's duty to the client

(a) Generally

Acceptance and retention of briefs - Cab rank rule:
The general principle of the cab rank rule assumes that a barrister must take the brief next offered to him/her by an instructing solicitor. As Ross and MacFarlane interpret the rule - "The notion is if you are available, the appropriate fee is right and the work is within the barrister's capability, then, the barrister must accept the brief."

Bar Rules 87 - 90 prescribe the conditions upon which a brief must be refused.  Generally if they will have an interest in the case.  Be a witness, have relatives involved, a pecuniary interest or otherwise in the outcome, is in a court they wehere on the bench of within prescribed time frames.

Rules 91 and 92 the conditions under which a brief may be refused.  Generally if they can not give it the support it needs by themselves or because there is no instructing solicitor or they feel they will not be paid.

Rules 93 - 102 provide the many conditions upon which a brief must not be returned with particular reference to a long list of potential scheduling conflicts, conflicts of interest.

R v O'Connell (1844) 7 Ir LR 261 at 313

Advocate is a representative not a delegate and counsel must remember prior retainer to the court

The matter is significant as an illustration of the general duties owned to a client because of the seemingly tireless way in which counsel attacked every element of the charges, the case and the manner in which the trial was conducted.

Rondel v Worsley [1969] 1 AC 191 at p.227-228

Over riding duty to the court

The court considered the distinction between a solicitor's duty of care in general terms and the required standard where the solicitor acts as an advocate.

The court held that a solicitor's duty to his/her client requires due care and skill in the discharge of the implied contract of engagement.

Giannarelli v Wraith (1988) 165 CLR 543 at 556

The essence of this argument is that the advocate is in a unique position because the duty to his or her client is subject to the advocate’s overriding duty to the court. This duty may require the advocate to act to the disadvantage of the client’s case, even if the client instructs to the contrary. For example, the advocate must not mislead the court and must not withhold documents or authorities, even if they detract from his or her client’s case

Advocate selects witnesses and their numbers what questions, what topics, what submissions regardless of the clients instructions

Bar Rules, rr 16-19

16. Must advance and protect his client however distasteful

17. Must explain all circumstances and possibilities to get full and proper instructions

17A. A barrister must inform the client or the instructing solicitor about the alternatives

17B. A barrister must advise a client who is charged with a criminal offence about any law, procedure or practice which in substance holds out the prospect of some advantage (including diminution of penalty), if the client pleads guilty or authorises other steps towards reducing the issues, time, cost or distress involved in the proceedings.

Disinterestedness

18. A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgements called for during the case independently, after appropriate consideration of the client's and the instructing solicitor's desires where practicable.

19. A barrister will not have breached the barrister's duty to the client, and will not have failed to give reasonable consideration to the client's or the instructing solicitor's desires, simply by choosing, contrary to those desires, to exercise the forensic judgements called for during the case so as to:
(a) confine any hearing to those issues which the barrister believes to be the real issues;
(b) present the client's case as quickly and simply as may be consistent with its robust advancement; or
(c) inform the court of any persuasive authority against the client's case.

20. A barrister must not make submissions or express views to a court on any material evidence or material issue in the case in terms which convey or appear to convey the barrister's personal opinion on the merits of that evidence or issue.

(b) To act in client's best interests

Smout v Smout [1989] VR 845*

Counsel made an intemperate remark when referring to the effect of the litigation and the effect on the public as a rort in front of the jury which could readily be construed as unjustified.

This is an obvious example of going too far in pursuing a client's best interests.

(c) To act within authority

Because counsels actions may bind the client they can adversely affect their rights and therefore must act within authority.  Clients are bound for the authorised conduct of counsel even if they don’t like the outcome or later remove authority to act Harvey.  If they [counsel] act without authority then the acts of counsel are not necessarily binding Swinfen.

Harvey v Phillips (1956) 95 CLR 235*

Counsel, along with others, encouraged a plaintiff to settle a personal injury matter although she expressed her extreme resistance to this outcome. Consent ultimately was reluctantly given and counsel proceeded to settle the matter on the basis that these were his instructions.  Later the plaintiff revoked the consent and unsuccessfully sought to have it set aside'

Negotiations by advocate bind client even without authority if the other party has no knowledge of the lack of authority