DIRECT BRIEFING OF MTECC BARRISTERS
Direct briefing of barristers in Victoria and New South Wales is expressly permitted under the Legal Profession Uniform Conduct (Barristers) Rules 2015 (the “Uniform Barristers Rules”), provided such work is the work of a barrister within the meaning of the Uniform Barristers Rules and the appropriate disclosures have occurred, as detailed below.
The “work of a barrister” is defined in rule 11 of the Uniform Barristers Rules as:
- appearing as an advocate;
- preparing to appear as an advocate;
- negotiating for a client with an opponent to compromise a case;
- representing a client in a mediation or arbitration or other method of alternative dispute resolution;
- giving legal advice;
- preparing or advising on documents to be used by a client or by others in relation to the client’s case or other affairs;
- carrying out work properly incidental to the kinds of work referred to in (a)–(f); and
- such other work as is from time to time commonly carried out by barristers.
A barrister is not permitted to perform the work of a solicitor. The work of a solicitor is generally comprised of the 12 categories of conduct described in rule 13 of the Uniform Barristers Rules. For example, under rule 13 a barrister must not, except in a personal capacity, perform the following work:
- act as a person’s general agent or attorney in that person’s business or dealings with others (rule 13(a));
- place herself or himself at risk of becoming a witness, by investigating facts for the purposes of appearing as an advocate or giving legal advice (rule 13(c));
- conduct correspondence in the barrister’s name on behalf of any person otherwise than with the opponent (rule 13(b));
- act as the address for service of any document or accept service of any document (rule 13(e)); and
- commence proceedings or file (other than file in court) or serve any process of any court (rule 13(f)).
It is therefore important to note that when briefing a barrister, the brief must not require that barrister to perform the work of a solicitor, and must only require the barrister to perform the work in rule 11. That is, the brief should usually be restricted to one or more of the following: to give advice, to prepare court/tribunal documents and/or to appear in a court/tribunal.
The Uniform Barristers Rules require in rule 22 that when accepting a direct brief, a barrister must inform the client of, and obtain a written acknowledgement signed by the client of, the following:
- the effect of the matters in rules 11 and 13, described above;
- the fact that circumstances may require the client to retain an instructing solicitor at short notice, and possibly during the performance of the work;
- any other disadvantage which the barrister believes on reasonable grounds may, as a real possibility, be suffered by the client if the client does not retain an instructing solicitor
- the relative capacity of the barrister in performing barristers’ work to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructing solicitor to supply them; and
- a fair description of the advocacy experience of the barrister.
It is common for barristers to be directly briefed to give advice given the simple nature of the task; however, it is very common for barristers to have an instructing solicitor when appearing in court because of the need to communicate with the other side and the court/tribunal, including by filing and serving documents.