Published on 29/11/2009

A barrister's duty to the client

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.

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

R v Berk (1990) 19 NSWLR 677

The appellant alleged that a trial for malicious wounding and rape miscarried because his inexperienced counsel and instructing solicitor failed to act upon his instructions to enter or examine all of his defence to the particulars of the Crown case. The barrister admitted in the appeal that he omitted aspects of the appellant's instructions and that he lacked the experience to rectify the problem' The Court of Appeal disallowed the appeal. Conduct of trial and not authority to settle

Swinfen v Lord Chelmsford (1860) 157 ER 1436

Where the case was settled without authority the settlement was not enforced and a new trial ordered. She could not claim the costs of the new trial under the immunity of advocates principle

(d) To act independently

Counsel is vested with a number of powers and obligations, the primary obligation of counsel to the client is to act with reasonable, care, diligence and judgment and in the best interests of his/her client. Swinfen all the law requires from a counsel... is that he shall discharge his duty to the best of his ability and that the defendant was not responsible if he intended to act honestly and for the benefit of his client

Swinfen v Lord Chelmsford (1860) 157 ER 1436

lt was held that counsel could not be prosecuted for acting in a manner that he perceived to be in his client's best interests, even where those actions were contrary to the express instructions of his client. No action re withdrawal of jury as it is the advocates decision on the conduct of the case.

Giannarelli v Wraith (1988) 165 CLR 543 at 556

This duty may require the advocate to act to the disadvantage of the client’s case, even if the client instructs to the contrary.

(e) Immunity as an advocate

Swinfew v Lord Chemsford (1860) (UK).

For almost a hundred and fifty years the law in England had been that an advocate (whether that be a solicitor or barrister) had immunity from being sued for negligence when acting in the role of an advocate.

Rondel v Worsley [1969] 1 AC 191 at 227*

The House of Lords not only upheld its validity, but extended it to the work of solicitors.

That the protection should not be any wider than would be absolutely necessary in the interests of the administration of justice

Set down 5 principles as if one were able to sue:

1. Would act in interests of client not court in breach of a fundamental rule
2. Cab Rank – May not refuse certain types of client
3. Fear would make advocates over cautious
4. Barristers should be treated on an equal footing with other members in the court (judges, jury)
5. Allows negligence cases to be tried with a different standard of proof could lead to collateral attacks on previous verdicts

Test For Scope Of Immunity

Rees v Sinclair [1974] 1 NZLR 180

‘where the particular work is so intimately connected with the conduct of the cause in Court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing

Saif Ali v Sydney Mitchell and Co [1978] 1 QB 95; [1980] AC 198

Ultimately upheld the general immunity, that the immunity should not be a blanket one, but that the circumstances of the matter should be taken into account.

In this case wrong defendant claimed on statement of claim and fell outside immunity = UK

Arthur J.S Hall and Co. v. Simons and others [2000] UKHL 38 (20th July, 2000)

This rule has since been abolished in the UK

“Barristers Immunity”, Bar News, Spring 2000
Criticisms raised by the decision in Arthur Hall were

1. The facts of the case concerned a negligence claim against solicitors in respect to advice given on settlement of an action. Factually, the case was an inappropriate vehicle for consideration of removal of barristers’ immunity. A far reaching change such as removal of immunity would be better considered on the facts of a case clearly coming within the core ambit of the immunity such as, for example, a barrister taking a decision in the strategic conduct of a case where the balance of professional opinion was that the course was inappropriate
2. It could be forcefully argued that to remove the immunity is to push English advocates closer to the American model of no cab rank rule, fusion of the profession, unlimited contingency fees and lesser duties to the Court
3. Lack of current relevance with cab rank rule
4. Cost sanctions against barristers in that civil liability may far exceed the limits of any available insurance policy
5. The power to summarily dismiss claims with little merit and the inability to call the judge to demonstrate reasonableness of the process/settlement

AUST

But still remains in Australia D’orta-Kenarke v Victorian Legal Aid [2005]. Though the immunity no longer applies to matters of discovery. The immunity extends to all lawyers for work intimately associated with litigation Giannarelly v Wraith (1988). This means the immunity extends to solicitors as well as the advocates, so long as an advocate would be immune if they rather than the solicitor did the act or omission.

A number of public policy reasons are given in Giannarelli to support the continuation of the general immunity, including:

1. protection from re-litigation of cases,
2. the right of barristers to be treated in the same manner as judges, juror and witnesses in proceedings, in terms of protection from civil litigation resulting from their actions;
3. the fear that potential negligence actions would make barristers overly cautious in the conduct of proceedings; and
4. the barristers would put their obligations to their clients before those of their obligations to the courts.

Giannarelli v Wraith (1988) 165 CLR 543

Confirms rule in Rondell v Worsley using test in Rees

This immunity from suit extends to work done by the advocate outside court which leads to a decision, and includes solicitors acting as advocates

Keefe v Marks (1989) 16 NSWLR 713
The Court of Appeal, applying Giannarelli, held that the common law immunity of barristers from liability for negligence extended to out of court work intimately connected with or ancillary to the conduct of a case in court.

Yates Property Corp v Boland (1997) 145 ALR 169 (first instance); (1999) 167 ALR 575 (HC)

Confirms immunity for statements of claim

However in a detailed discussion of the immunity, Kirby J indicated that he looked forward to a later opportunity to abolish the immunity. His view was not supported by three other members of the bench who chose to express an opinion

Donellan v Watson (1990) 21 NSWLR 335

The immunity from litigation is not co-extensive between the role of barrister acting as an advocate and solicitor acting as an advocate, for the reasons given –

[a] solicitor enters into a binding contract wíth the client which may either expressly or by necessary implication limit the solicitor's authority as the agent of the client, in the conduct of the litigation .... For example, a solicitor ... is bound to take reasonable care to properly instruct competent counsel ...
[A] solicitor who briefs himself [or herself] may be liable in negligence of briefing an
incompetent advocate although not liable in negligence as advocate.

D’Orta-Ekenaike v Victorian Legal Aid [2005] HCA (12 March 2005)
Affirmed the common law in Australia as stated in Giannarelli v Wraith. The court also held that a solicitor is entitled to common law immunity from suit in respect of acts or omissions which, if done by an advocate, would be within the scope of the advocate’s common law immunity

Chamberlains v Lai [2006] NZSC 70

The Supreme Court has upheld the decision of the Court of Appeal to abolish the longstanding common law rule that barristers cannot be sued for work they do in Court and other work intimately connected with in-court work.

(f) Confidentiality
Must not disclose confidential communications with client

Lawyers have both an ethical and contractual duty to maintain the confidences of their clients. The issue of client confidentiality is fundamental to the fiduciary relationship between legal practitioner and client. A breach of client confidentiality is a breach of the agency principles relating to the fiduciary relationship.

A failure to maintain the confidence of a client can give rise to disciplinary proceedings for misconduct, whether the practitioner is practicing as a barrister or solicitor.

According to the Law Council of Australia's Model Rules, the protection is not limited to matters already protected by legal professional privilege.

The New South Wales Bar Rules 103 - 111 describe the circumstances where confidentiality provisions apply, and, where conflict of interest and confidentiality issues must be balanced. The confidentiality provisions apply to original and derivative materials relating to a client's matter, including lawyer's notes. The protection may extend beyond the death of a client. Additionally, certain matters covered by s120 of the Evidence Act, are also included, particularly work product of a litigant appearing in person.

Exceptions to the general rule include those matters -
1. required by law to be disclosed;
2. required by a rule of court to be disclosed; (see s122(2) of the Evidence Act and Sevic v Roarty); and
3. required by a court order to be disclosed.

Tuckiar v R (1934) 52 CLR 335

The Court of Appeal held that “openly disclosing the privileged communication of his client… is wholly indefensible” and that any such disclosure was a “grave breach of the confidence reposed in him by the prisoner”. In this case disclosure of an admission resulted in acquittal and unable to get a new fair trial so no retrial ordered.

The Court of Appeal in Tuckiar made it quite clear that breaching client confidentiality for the sole purpose of correcting the implications of a past crime is unacceptable.

Bar Rules, rr 103-111

103. A barrister must not disclose (except as compelled by law) or use in any way in the course of practice confidential information obtained by the barrister concerning any person unless or until:
(a) the information has been published;
(b) the information is later obtained by the barrister from another person who is not bound by the confidentiality owed by the barrister to the first person and who does not give the information confidentially to the barrister; or
(c) the person has consented to the barrister disclosing or using the information generally or on specific terms.

104. A barrister must not disclose (except as compelled by law) or use confidential information under Rule 103(c) in any way other than as permitted by the specific terms of the person's consent.

105. A barrister will not have breached Rules 103 and 104 simply by showing briefs to a reader or to another barrister doing work as permitted by Rule 83, so long as the barrister has reminded the reader or the other barrister of barristers' duties of confidentiality including Rules 103 and 104.

106. A barrister who is shown a brief as a reader or under an arrangement covered by Rule 83 is bound by the same duties of confidentiality which bind the barrister whose brief it is, including the duties imposed by Rules 103 and 104.

107. A barrister who has accepted a brief must return the brief as soon as possible after the barrister becomes aware that the barrister has information confidential to a person other than the client which may, as a real possibility, be helpful to the client's case or to the advancement of the client's interests, being information which the barrister is prohibited from disclosing or using by Rules 103, 104 or 106, unless the person entitled to the confidentiality consents to the barrister disclosing or using the information as the barrister thinks fit.

108. A barrister who is briefed to appear for two or more parties in any case must determine as soon as possible whether the interests of the clients may, as a real possibility, conflict and, if so, the barrister must then return the brief for:
(a) all the clients in the case of confidentiality to which Rule 103 would apply; or
(b) in other cases, one or more of the clients:
(i) giving preference to the earliest brief if the barrister was briefed at different times; and
(ii) so as to remove that possibility of conflict.

109. A barrister who, during the hearing of the case, becomes aware that the interests of the clients or some of them do or may, as a real possibility, conflict, must return the brief for:
(a) all the clients in the case of confidentiality to which Rule 103 would apply; or
(b) in other cases, one or more of the clients:
(i) giving preference to the earliest brief if the barrister was briefed atdifferent times; and
(ii) so as to remove that possibility of conflict.

110. A barrister need not return any briefs to appear under Rules 108 or 109, if the barrister has informed the instructing solicitor or the clients, as the case may be, of the barrister's view as to the clients' conflicting interests, and the instructing solicitor or the clients, as the case may be, inform the barrister that all the clients nonetheless wish the barrister to continue to appear for them.

111. A barrister who believes on reasonable grounds that the interests of the client may conflict with the interests of the instructing solicitor, or that the client may have a claim against the instructing solicitor, must:
(a) advise the instructing solicitor of the barrister's belief; and
(b) if the instructing solicitor does not agree to advise the client of the barrister's belief, seek to advise the client in the presence of the instructing solicitor of the barrister's belief.

(g) Conflict

Nangus v Charles Donovan [1989] VR 184*

The general rule is that counsel ought not appear for two clients whose interests may conflict. The court is concerned that it should have the assistance of independent counsel for parties whose interests are not identical in the case before it.

In circumstances where counsel represents two (apparently conflicting parties) it will be for the court to determine whether there may be a departure from the prima facie rule.

Bar Rules, r 108 – If a conflict arises between citizens because of confidentiality then must return briefs.