Independence

Question 1

What rule deals with not acting as a mere mouth piece and exercising forensic judgment ?

Answer 1

r 41 - a barrister must not act as a mere mouth piece of the client or instructing solicitor must exercise forensic judgment called for independently after consideration of instructions from client.

Question 2

Why is barrister independence important?

Answer 2

The proper administration of justice relies on the independence because (1) the judicial process would be undermined if lawyers lacked objectivity and impendence duties requires of them (2) public confidence in the legal profession would be undermined if clients were not assured they were getting independent and unbiased legal advice.

Question 3

A barrister is instructed by his client to make every legal point and argument conceivable. What should the barrister do?

Answer 3

r 41-42; inform the client that a barrister must not act as a mere mouthpiece must exercise forensic judgment called for during the case and has a duty to present the case simply and as quickly and as robustly and as efficient as possible (giannarelli v wraith). The rationale is to avoid use of court time, and associated cost, by reframing arguments which are not reasonably open.

Should the barrister allow the client to assume control over the litigation this may be considered an abuse of process, court may disqualify from acting, and disciplinary action (s 227 LPA)

r 99 (g) should the client refuse the advice return the brief assuming r 104 can be complied with.

Question 4

What rule deals with the barrister duty to present case as quickly and robustly as possible?

Answer 4

r 42 - a barrister has a duty to present case as quickly and simply as possible for the robust advancement of the case and confine issues at hearing to those issues which the barrister believes to be in issue will not have breached the barrister duty to the client.

Question 5

What is the rationale for duty to present case as quickly and robustly as possible?

Answer 5

the rationale is to avoid misuse of court costs and time hearing arguments which are not reasonably open.

Question 6

What is the rule regarding not to express personal opinion on evidence or issue?

Answer 6

r 43 - barrister must not express personal opinion on evidence or issue. The rationale is it is irrelevant to

Question 7

Wentworth v Rogers

Answer 7

A lawyer must not allow a client to take control over the litigation or risk being held personally liable for any consequences which may follow from the client’s appearance i.e. abuse of process

Question 8

What rule deals with the a barrister not giving impression of favour with the court? and what is the rationale for doing so and potential consequence.

Answer 8

r 43 - a barrister must not deal with the court in a personal way in the presence of the other party in which would give the impression that would have some favour. The rationale is to ensure independence of both the barrister and the court. The consequence of doing so may be a recusal application, disciplinary proceedings for barrister, or barrister restrained from acting.

Question 9

What rule deals with must not give the commission for the introduction for work?

Answer 9

r 45 - a barrister must not receive or give a gift for the introduction of work. The rationale is that it does not give the perception of independence which may erode client’s confidence they are getting independent and unbiased legal advice.

Question 10

What rule requires a barrister to do exercise undue influence on a client for the barrister’s benefit?

Answer 10

r 46 - a barrister must not exercise undue influence on the client to obtain a benefit to the barrister in excess of the barrister’s remuneration

Question 11

What rule requires a barrister to not receive any money or loan from a client unless they are in the business of loans? What is the rationale for the rule?

Answer 11

r 47- must not receive a loan from a client. This is because it would not appropriate level of independence from the client which may erode trust that the client is receiving unbiased independent legal advice.

Question 12

Where a lawyer has a personal relationship with an opposing lawyer what should the barrister do and what are the risks?

Answer 12

r 99(k) barrister has a duty of independence and where there is perception that relationship with otherside may compromise barrister’s ability to act in best interests of client or there is a perception that conduct may be biased or lacks necessary independence should inform client and return the brief if required