A new version of the New South Wales Barristersâ Rules was Gazetted on Friday, 6 December replaces the version gazetted on 8 July 2011. It mirrors the amendments made to the uniform national rules of conduct prepared and approved by the Australian Bar Association, the peak body for all Australian barristers.
The new Rules will take effect on 6 January 2014.
Click here to view the Rules in their entirety clearly showing the changes. A summary of the amendments and additions appear below.
The new Rules incorporate amendments to clauses 17(f), 24B, 36, 78, 88A, 95(b), 95(j), 96(b), and 99(l), as follows:
Clause 17(f) â Addition of the words âcommence proceedings or file orâ¦â before the words ââ¦serve any process of any courtâ.
Clause 24B â Addition of the words ââ¦or officer of a government department or agency whose usual duties include engaging lawyersâ¦â after the words âA barrister who proposes to accept instructions directly from a person who is not a solicitorâ¦â
Clause 36 â Addition of the words ââ¦any apparentâ¦â between the words âA barrister must inform the court ofâ¦â and ââ¦misapprehension by the court as toâ¦â
Clause 78 â Deletion of the word ââ¦learnsâ¦â and addition of the words ââ¦is informed by the client or by the witnessâ¦â between the words âA barrister who, as a result of information provided by the client or a witness called on behalf of the client,â¦â and ââ¦during a hearing or after judgmentâ¦â.
Clause 88A â Deletion of the words âprovided thatâ¦â at the beginning of the clause. Addition of the words ââ¦rule 88(c)â¦â between the words âââ¦on any ground withinâ¦â and ââ¦(iii), (iv) or (v),â¦â. Addition at the end of the clause of the words ââ¦unless the interests of justice would be harmed if such grounds were revealed to the opponent.â.
Clause 95(b) â Addition of the words ââ¦or otherwiseâ¦â between the words âthe clientâs interest in the matterâ¦â and ââ¦is or would be in conflict withâ¦â.
Clause 95(j) â Addition of the following at the end of the clause ââ¦, unless the hearing is before the High Court of Australia sitting all available judges;â.
Clause 96(b) â Addition of the words ââ¦or retainingâ¦â between ââ¦approves of the barrister acceptingâ¦â and ââ¦the brief after the barristerâ¦â.
Clause 99(l) â Addition of the words ââ¦personal or businessâ¦â between the words ââ¦is to appear before a judge whoseâ¦â and ââ¦relationship with the barristerâ¦â. Addition of the following at the end of the clause ââ¦give rise to the apprehension that there may not be a fair hearing;â.
The new Rules incorporate the addition of new clauses 40A, 40B, 40C, 88(c)(v), 115, 116, and 117 and definitions in clause 119 for the terms âdiscriminationâ, âsexual harassmentâ, and âworkplace bullyingâ. The new clauses are set out below.
40A.It is the duty of a barrister representing a person charged with a criminal offence:
(a) to advise the client generally about any plea to the charge; and
(b) to make clear that the client has the responsibility for and complete freedom of choosing the pleas to be entered.
40B. For the purpose of fulfilling the duty in rule 40A, a barrister may, in an appropriate case, advise the client in strong terms that the client is unlikely to escape conviction and that a plea of guilty is generally regarded by the court as a mitigating factor to the extent that the client is viewed by the court as cooperating in the criminal justice process.
40C. Where a barrister is informed that the client denies committing the offence charged but insists on pleading guilty to the charge, the barrister;
(a) must advise the client to the effect that by pleading guilty, the client will be admitting guilt to all the world in respect of all the elements of the charge;
(b) must advise the client that matters submitted in mitigation after a plea of guilty must be consistent with admitting guilt in respect of all of the elements of the offence;
(c) must be satisfied that after receiving proper advice the client is making a free and informed choice to plead guilty; and
(d) may otherwise continue to represent the client.
88(c)(v) the prosecutor, having the responsibility of ensuring that the prosecution case is presented properly and presented with fairness to the accused, believes on reasonable grounds that the interests of justice would be harmed if the witness was called as part of the prosecution case.
115. A barrister shall not give an undertaking to the court on behalf of a solicitor or a client without express authority of the person concerned.
116. A barrister shall not disclose to the court, whether in submissions, examination, cross-examination or otherwise, any communication between the barrister and legal representatives appearing in the proceedings for any other party to the proceedings:
(a) except by consent;
(b) unless what occurred resulted in the creation of some contractual or other legal relationship; or
(c) unless it was expressly stated before or at the commencement of such communication that matters communicated should not be regarded as without prejudice or privileged from use or disclosure; or
(d) unless disclosure is required by the Court.
ANTI-DISCRIMINATION AND HARASSMENT
117. A barrister must not in the course of practice, engage in conduct which constitutes:
(f) sexual harassment; or
(g) workplace bullying.
âdiscriminationâ means discrimination that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation.
âSexual harassmentâ means harassment that is unlawful under the applicable state, territory or federal anti-discrimination or human rights legislation.
âWorkplace bullyingâ means behaviour that could reasonably be expected to offend, intimidate, degrade, humiliate, isolate or alienate a person working in a workplace.
20 December 2013