This post, based on research by Zoe Dealehr, collects together the various Bar conduct rules around Australia relating to the requirement of a proper factual foundation for making allegations of criminality, fraud and other serious misconduct as well as for allegations in litigation more generally.
First of all, the relevant Victorian rules are set out. They are more detailed than the other states’ and territories’ rules. Apart from Tasmania’s, the rest of Australia’s conduct rules for barristers are almost uniform and are similar to, but different from Victoria’s.
Tasmania appears to have no conduct rules on the subject, but it is said that it is soon to adopt the national rules which are the foundation for the non-Victorian rules.
The Victorian rules are more detailed than the other conduct rules for lawyers around Australia.
Victorian barristers’ rules – interpretation
“case” means the litigation or proceedings in which the barrister in question is briefed to appear, or the dispute in which the barrister is advising, as the case may be.
“client” means the client of the practitioner in question … and includes those officers, servants or agents of a client, which is not a natural person, who are responsible for or involved in giving instructions on behalf of the client.
“court” means any body described as such and all other judicial tribunals, all statutory tribunals and disciplinary tribunals and all statutory or Parliamentary investigations and inquiries, Royal Commissions, arbitrations and mediations.
“criminal proceedings” includes disciplinary proceedings, in which context other expressions appropriate to criminal proceedings include corresponding meanings appropriate to disciplinary proceedings and in particular “a serious criminal offence” includes a disciplinary shortcoming which, if proved, involves the serious possibility of suspension or de-registration (or the equivalent).
“forensic judgments” do not include decisions as to the commencement of proceedings, the joinder of parties, admissions or concessions of fact, amendments of pleadings or undertakings to a court, or in criminal proceedings as to a plea, but do include advice given to assist the client or the instructing solicitor to make such decisions.
“instructing solicitor” means the solicitor from whom the barrister in question has accepted a brief or who is instructing that barrister in that brief, as the case may be.
9 (a) These Rules are not, and should not be read as if they were, a complete or detailed code of conduct for barristers. Other standards for, requirements of and sanctions on the conduct of barristers are found in the inherent disciplinary jurisdiction of the Supreme Court, in the Legal Practice Act and in the general law (including the law relating to contempt of court).
9(c) General provisions of these Rules should not be read or applied in a limited way by reason of any particular or illustrative provisions.
Victorian barristers’ rules — the rules
Duty to Court, Conduct in Court
31 A barrister must, when exercising the forensic judgments called for throughout a case, take care to ensure that decisions by the barrister or on the barrister’s advice to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person:
(a) are reasonably justified by the material then available to the barrister.
32 When drawing or settling a pleading or affidavit, a barrister shall not include an allegation which is not supported by facts contained in instructions, or by facts which the barrister otherwise reasonably believes to exist.
34 A barrister must not draw or settle any court document alleging criminality, fraud or other serious misconduct unless the barrister believes on reasonable grounds that:
(a) factual material already available to the barrister provides a proper basis for the allegation if it is made in a pleading;
(b) the evidence in which the allegation is made, if it is made in evidence, will be admissible in the case when it is filed; and
(c) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client if it is not made out.
35 A barrister must not open as a fact any allegation which the barrister does not then believe on reasonable grounds will be capable of support by the evidence which will be available to be presented to support the client’s case.
38 A barrister must not cross-examine so as to suggest criminality, fraud or other serious misconduct on the part of any person unless:
(a) the barrister believes on reasonable grounds that the material already available to the barrister provides a proper basis for the suggestion.
39 A barrister may regard the opinion of the instructing solicitor that material which appears to support a suggestion within Rule 38 is itself credible as a reasonable ground for holding the belief required by Rule 38(a).
40 A barrister must make reasonable inquiries to the extent which is practicable before the barrister can have reasonable grounds for holding the belief required by Rule 38(a), unless the barrister has received and accepted an opinion from the instructing solicitor within Rule 39.
42 A barrister must not suggest criminality, fraud or other serious misconduct against any person in the course of the barrister’s address on the evidence unless:
(a) the barrister believes on reasonable grounds that the evidence in the case provides a proper basis for the suggestion; and
(b) there are reasonable grounds for believing that such matters are both well founded and also relevant.
Western Australian barristers’ rules
Interpretation
10. These Rules are not intended to be a complete or detailed code of conduct for barristers. Other standards for, requirements of and sanctions on the conduct of barristers are found in the inherent disciplinary jurisdiction of the Supreme Court, the Legal Profession Act 2008 and in the general law (including the law relating to contempt of court).
7. General provisions of these Rules should not be read or applied in a limited way by reason of any particular or illustrative provisions.
“allege” includes conduct constituted by settling or opening on pleadings, affidavits or witness statements, and reading or tendering affidavits or witness statements filed or prepared for the client (whether or not they were drawn or settled by the barrister).
“court” means any body described as such and all other judicial tribunals, and all statutory tribunals and all investigations and inquiries (established by statute or by a Parliament), Royal Commissions [the Criminal Justice Commission/ICAC or equivalent], arbitrations and mediations.
“instructing solicitor” means the solicitor from whom the barrister in question has accepted a brief or who is instructing that barrister in that brief, as the case may be, but does not include a solicitor appearing with the barrister as a joint advocate; and includes a patent attorney.
Rules
59. A barrister must take care to ensure that the barrister’s advice to invoke the coercive powers of a court: (a) is reasonably justified by the material then available to the barrister;
60. A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person: (a) are reasonably justified by the material then available to the barrister;
63. A barrister must not allege any matter of fact in:
(a) any court document settled by the barrister;
(b) any submission during any hearing;
(c) the course of an opening address; or
(d) the course of a closing address or submission on the evidence;
unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so.
64. A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:
(a) available material by which the allegation could be supported provides a proper basis for it; and
(b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
65. A barrister may regard the opinion of the instructing solicitor that material which is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which Rules 63 and 64 apply, as a reasonable ground for holding the belief required by those Rules (except in the case of a closing address or submission on the evidence).
The following rules are to similar effect:
New South Wales barristers’ rules
So too are South Australia’s, the ACT’s and the Northern Territory, except in a couple of respects:
South Australia barristers’ rules
The definition of “instructing solicitor” is:
the solicitor from whom the barrister in question has accepted a brief or who is instructing that barrister in that brief, as the case may be, but does not include a solicitor appearing with the barrister as a joint advocate; and includes a patent attorney.
Australian Capital Territory barristers’ rules
The ACT’s rules are the same as Western Australia’s except that they include a version of the Victorian rule 40:
A barrister must make reasonable enquiries to the extent which is practicable before the barrister can have reasonable grounds for holding the belief required by Rule 38(a), unless the barrister has received and accepted an opinion from the instructing solicitor within Rule 39.
And the definition of ‘instructing solicitor’ is slightly different:
“instructing solicitor” means the solicitor from whom the barrister in question has accepted a brief or who is instructing that barrister in that brief, as the case may be, but does not include a solicitor appearing with the barrister as a joint advocate.
Northern Territory barristers’ rules
The Northern Territory’s rules too are similar to Western Australia’s except that they have the following additional rule 39:
A barrister may regard the opinion of the instructing solicitor that material which is available to the solicitor is credible, being material which appears to the barrister from its nature to support an allegation to which Rules 36 and 37 apply, as a reasonable ground for holding the belief required by those rules (except in the case of a closing address or submission on the evidence).
And ‘instructing solicitor’ is defined to mean:
the solicitor from whom the barrister in question has accepted a brief or who is instructing that barrister in that brief, as the case may be, but does not include a solicitor appearing with the barrister as a joint advocate; and includes a patent attorney.
