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Obligations of counsel to clients and duties to the Court

Tue Dec 04 2018
Message from President Tim Game SC

In the recent judgment of AB (a pseudonym) v CD (a pseudonym) and Ors; EF (a pseudonym v CD (a pseudonym) and Ors [2018] HCA 58, the High Court condemned the conduct of a barrister in Victoria, who acted as an informant on her clients, as involving “appalling breaches of EF’s obligations as counsel to her clients and of EF’s duties to the court”.

In light of the revelations regarding this conduct, I remind all barristers that their paramount duty is to the administration of justice. The Legal Profession Uniform Conduct (Barristers) Rules 2015 (‘the Rules’), and professional rules that were in place long before the current Rules, have always maintained this position. Barristers must maintain high standards of professional conduct and this includes high standards of professional conduct in the maintenance of their duty to their clients, the court and colleagues within the Rules.

The Rules provide that “A barrister must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person”. The inclusion of the words “by all proper and lawful means” was deliberate, reflecting the obligations which Barristers have under the law and as emphasised throughout the Rules.

The Rules do not provide any means by which barristers could ever be complicit in criminal conduct. To the contrary their ethical responsibilities, and compliance with the law (including the criminal laws such as s 316 of the Crimes Act), will always preclude this situation. This is a matter often not understood by the wider community.

The President will be calling a meeting with the NSW Police Commissioner, the Commissioner of the New South Wales Crime Commission and the NSW Director of Public Prosecutions to ensure that the administration of justice in NSW has not been compromised in any like manner to that which the High Court has condemned. Should any barrister have any knowledge that, in accordance with their ethical responsibilities, should be drawn to the attention of the NSW Bar Association this should be done as a matter of utmost urgency.

All barristers are invited to contact the Association should they ever require ethical guidance in relation to their duties and responsibilities.

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