Barristers and the media

Generally speaking, lawyers and the media are a subject of ongoing controversy. I felt very uneasy about Schappelle Corby’s barristers turning on her and suggesting that other members of her legal team were paying bribes. It seemed hard to believe that Corby had sanctioned that course. The English Bar Standards Board’s website summarises the situation in England. The relevant Victorian Bar’s rules of conduct are reproduced below. They restrict only comment on cases with which the barrister is directly involved, but there is of course a complex web of other rules and laws which restrict what barristers may say about court cases. Some of them which apply in NSW are enumerated on this page. The Victorian rules say this:

‘“current proceedings”  means proceedings which have not been determined, including proceedings in which there is still the real possibility of an appeal or other challenge to a decision being filed, heard or decided.

“potential proceeding” means proceedings which have not been commenced but where there is information which has been publicised that such process is imminent or where there is a very real likelihood that process will be instigated.

58. (a) A barrister must not publish or take any step towards the publication of any material concerning any current or potential proceeding which:

(i) is inaccurate;

(ii) discloses any confidential information;

(iii) appears to or does express the opinion of the barrister on the merits of the current or potential proceeding or on any issue arising in the proceeding,

other than in the course of genuine educational or academic discussion on matters of law.

(b) Subject to sub-rule (a) and any court rule or order to the contrary a barrister may publish or assist the publishing of material concerning a current proceeding by supplying only:

(i) copies of pleadings or court documents in their current form, which have been filed and which have been served in accordance with the court’s requirements;

(ii) copies of affidavits or witness statements, which have been read, tendered or verified in open court, clearly marked so as to show any parts which have not been read, tendered or verified or which have been disallowed on objection;

(iii) copies of transcript of evidence given in open court, if permitted by copyright and clearly marked so as to show any corrections agreed by the other parties or directed by the court;

(iv) copies of exhibits admitted in open court and without restriction on access;

(v) answers to unsolicited questions concerning the current proceeding and the answers are limited to information as to the identity of the parties or of any witness already called, the nature of the issues in the case, the nature of the orders made or judgment given including any reasons given by the court and the client’s intentions as to any further steps in the case

provided that where the barrister is engaged in the current proceeding, the barrister does so only with the consent of the client first obtained.

59. A barrister will not have breached Rule 58 simply by advising the client about whom there has been published a report relating to the case, and who has sought the barrister’s advice in relation to that report, that the client may take appropriate steps to present the client’s own position for publication.’

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