InBrief

The president of the Workers Compensation Commission recently drew attention to the problem of counsel taking multiple briefs for matters listed at the same time. In e-Bulletin No 57, July 2014 the president stated:

… taking multiple briefs for con/arbs that are listed at the same time adversely impacts the opportunity to conciliate, the time available to conduct arbitration hearings and the overall effectiveness of the dispute resolution model.

Practitioners are reminded of the Bar Rules prohibiting taking multiple briefs. Solicitors should check when retaining counsel that they do not already have a case before the Commission. Solicitors should also be aware if counsel is unavailable when a matter is called on, they may be required to conduct the hearing.

Arbitrators have been directed to report to the Registrar all instances of counsel briefed in multiple cases.

If a pattern of some counsel taking multiple briefs to appear at conflicting times has been observed in the Workers Compensation Commission so as to prompt this comment by the president, it may not be restricted to the commission.

Barristers are reminded of rule 98 of the New South Wales Barristers Rules, which provides:

A barrister must not accept a brief to appear on a day when the barrister is already committed to appear or is reasonably likely to be required to appear on another brief if by appearing on one of the briefs the barrister would not in the normal course of events be able to appear on the other brief or briefs.

Barristers are also reminded of rules 102 and 104 – 106 regarding return of briefs.

1. A barrister must not return a brief to appear in order to accept another brief to appear unless the instructing solicitor or the client in the first brief has permitted the barrister to do so beforehand, after the barrister has clearly informed the instructing solicitor or the client of the circumstances in which the barrister wishes to return the brief and of the terms of this Rule and Rule 104.

2. A barrister who wishes to return a brief which the barrister is permitted to return must do so in enough time to give another legal practitioner a proper opportunity to take over the case.

3. A barrister must promptly inform the instructing solicitor or the client as soon as the barrister has reasonable grounds to believe that there is a real possibility that the barrister will be unable to appear or to do the work required by the brief in the time stipulated by the brief or within a reasonable time if no time has been stipulated.

4. A barrister must not hand over a brief to another barrister to conduct the case, or any court appearance within the case, unless the instructing solicitor has consented to that course.

Barristers will appreciate that breach of these rules is capable of being professional misconduct or unsatisfactory professional conduct.

The Bar Council expects that barristers would not accept a brief to appear in breach of rule 98 and if a diary conflict arises, promptly return one of the briefs (without breaching rules 102 and 104 – 106).