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From the President Print E-mail

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The Bar Council wishes to remind members of the provisions of Rules 60 and 61 of the 2007 Queensland Barristers Rule, a copy of which appears below.

It has come to the Council’s attention that there is an increasing tendency for barristers, both robed and unrobed, to speak to the media about cases in which they are or have been involved. This practice is particularly prevalent in criminal matters where public statements by practitioners have the potential to interfere in the due course of trials and the impartial consideration of the subject matter of criminal charges, especially by juries.

In his “The State of the Judicature” address to the Australian Legal Convention in 1997, The Hon Sir Gerard Brennan AC KBE said:

“The level of competence among practitioners who appear before the courts is sustained by professional structures, especially by the professional and financial independence of barristers who continue to perform most of the work of advocacy. That independence is conducive to the discharge of the advocate’s duty to the court on which the efficient disposition of cases depends. However, a recently emerging phenomenon occasions some misgiving. Some advocates have assumed the role of public relations officers for their clients, making their client’s case to the media and offering comment on the court’s judgment That role is inconsistent with the advocate’s duty to the court. The court can have no confidence that such an advocate will fairly and candidly assist the court on both fact and law. And the accolade or lament that the advocate presumes to express about the court’s judgment belittles the court’s authority. It is commendable for advocates to provide journalists with information to assist in the accurate reporting of a case, so far as the material is on the public record, but if court proceedings were the postscript or the prelude to counsel’s media release or court door interview, the courtroom becomes a mere backdrop to counsel’s media performance.”

The provisions of Rules 60 and 61 of the 2007 Queensland Barristers Rule and the statement of Sir Gerard Brennan provide an authoritative clarification of the appropriate course which should be adopted.

While Rule 60 essays exceptions to the ethical proscription on publication of court documents, members ought be cautious in treating any such exceptions as a sanction for publications, or as an encouragement to engagement in such conduct.

Particular documents (for example, witness statements) may well be the subject of an implied undertaking to the court precluding disclosure: Central Queensland Cement Pty Ltd v Hardy  [1989] 2 QdR 509. That may be so notwithstanding that the documents have been read in open court or found their way into the public domain: Home Office v Harman [1983] AC 280.

There is an authority extending the said implied undertaking to criminal proceedings: Taylor v Director of the Serious Fraud Office [1999] 2 AC 177.

Thus in giving consideration to publication, members ought address their substantive law, not just ethical obligations.

Rules 60 and 61 are reproduced below: 

Integrity of hearings

60. (a) A barrister must not publish or assist the publishing of material concerning a current proceeding except 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;

(vi) copies of submissions used in open Court and available to the parties, provided that where the barrister is engaged in the current proceeding, the barrister does so only with the consent of the client first obtained.

(b) Subject to sub rule (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.

61. A barrister will not have breached Rule 60 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.

CHANGES TO PUPILLAGE AND THE MEANING OF  ‘COURT ORIENTED WORK’ 

 

On June 2010, I informed the Association of amendments to the Association’s Administration Rules which require, amongst other matter, a pupil to undertake a substantial amount of ‘court oriented work’. Those amendments apply to barristers commencing pupillage on or after 1 July 2010.

‘Court oriented work’ is defined, in the Administration Rules, to mean ‘conferences or other preparation for a hearing and actual court or tribunal attendances’. Thus, attending a mediation will not count as ‘court oriented work’.

In any event, I encourage all pupils to gain as much experience in mediation as possible. One way is to ask your masters (or other experienced counsel) if you can sit in on a mediation as an ‘observer’.

Reproduced below are the Administration Rules (as amended). I urge all members, but particularly masters and pupils, to familiarise themselves with the new pupillage requirements; part 3 of the rules deals with pupillage.

 

Administration Rules of the Bar Association of Queensland

Made pursuant to  Section 231 of the Legal Profession Act 2007

 

PART 1 - PRACTISING CERTIFICATES

1.1 An application for a practising certificate by a legal practitioner shall be made to the Chief Executive on such form and containing such information as the Bar Council may from time-to-time prescribe. (Schedule 1)

1.2 Upon approval of an application for a practising certificate and upon payment of the prescribed fee the applicant shall be enrolled as a holder of a practising certificate and shall be issued with a certificate for the period in respect of which such fee has been paid. (Schedule 2)

1.3 An application for a practising certificate must be accompanied by a fee of such amount as is determined by the Bar Council. (Schedule 3)

1.4 The Bar Council may determine different practising certificate fees according to such different factors as it may from time-to-time determine.

1.5 If an application for a practising certificate is accepted by Bar Council after the end of the prescribed period during which the application is to be made, payment of a prescribed late fee may, if the Bar Council thinks fit, be required as a condition of acceptance of the application.

1.6 For the purposes of Rule 1.5 of these Rules, the “end of the prescribed period” shall be the third Friday in June.

1.7 For the purposes of Rule 1.5 of these Rules, the prescribed late fee is an amount determined by the Bar Council not exceeding 20 per cent of the fee payable in relation to the application.

1.8 The Bar Council may attach one or more of the following conditions to the practising certificate of the barrister:

1.8.1 a condition requiring the holder to undertake and complete to the satisfaction of the Bar Council a full-time component or other component of the Bar Practice Course applicable to the holder and determined or approved by the Bar Council;

1.8.2 a condition requiring the holder to sit for and pass any examination set by the Bar Council as part of the Bar Practice Course or as a requirement for entry to the Bar Practice Course;

1.8.3 a condition requiring the holder to undertake pupillage in accordance with Part 3 of these Rules.

1.8.4 a condition limiting the holder from engaging in legal practice other than as a government legal officer engaged in government legal work;

1.8.5 a condition limiting the holder from engaging in legal practice other than as an employee of a corporation engaged in providing in-house legal services;

1.8.6 a condition requiring the holder to undertake and complete one or more courses of Continuing Professional Development;

1.8.7 a condition requiring the holder to undertake additional academic or training courses;

1.8.8 a condition requiring the holder to maintain during the currency of the practising certificate professional indemnity insurance that complies with the Act;

1.8.9 a condition restricting the holder to particular conditions concerning employment or supervision;

1.8.11 a condition limiting the holder to supervised legal practice in the way stated in the condition;

1.8.12 any other condition agreed to by the holder;

1.8.13 any other reasonable and relevant condition that the Bar Council may from time-to-time determine.

1.9 A condition of a kind referred to in Rule 1.8 which is attached to the practising certificate of a barrister may limit the practising rights of the barrister until the condition is complied with.

1.10 The Bar Council may exempt a legal practitioner from full or part compliance with Rule 1.8.1, upon such conditions as it shall think fit. It shall have regard to all relevant circumstances, including:

(i) the barrister's previous experience as counsel;

(ii) the barrister's age, education, qualifications and legal experience.

1.11 Applications for exemption from Rule 1.8.1 shall be directed to the Chief Executive, in writing, detailing the grounds for exemption supported by a curriculum vitae and two professional references.

PART 2 - PROFESSIONAL INDEMNITY

2.1 No barrister shall engage in practice unless insured against claims for professional negligence in accordance with the Act.

2.2 Such insurance cover must:-

2.2.1 be for such sum as may from time-to-time be prescribed by the Bar Council ; and

2.2.2 be written so as to incorporate the minimum terms of cover approved from time to time by the Bar Council.

2.3 A practising barrister who becomes uninsured or has any limitation imposed upon the extent of an insurance cover, must notify the Bar Council immediately.

PART 3 - COMPULSORY PUPILLAGE

3.1 Every barrister who commences private practice, and who has not previously completed pupillage in Queensland, shall arrange to serve a period of not less than twelve months pupillage as the pupil of the masters nominated under these Rules.

3.1.1 The period of pupillage commences on the date a practising certificate is issued to the pupil barrister.

3.1.2 No barrister shall commence actual practice before:-

(a) arranging two masters as required by these Rules;

(b) completing and signing the Register of pupils; and

(c) being issued with a practising certificate.

3.2.1 A pupil is free to undertake any private work except as provided for in Rule 3.2.2

3.2.2 In the first six months of pupillage a pupil is prohibited from accepting a ‘direct access’ brief unless they obtain the written approval of the pupil’s senior or junior master and submit that written approval to the Chief Executive prior to acceptance of the brief.

3.3 The Register of Pupils

3.3.1 The Bar Association shall cause to be kept a Register (which may be in electronic form) of pupils and the masters nominated by them. The Register shall be completed and signed by the pupil before commencing private practice.

3.3.2 The completion and currency of the Register shall be the responsibility of a pupil.

3.4 Masters

3.4.1 A pupil shall have two masters: a senior master, being Senior Counsel, and a junior master, being a junior barrister of not less than five years' standing in actual practice.

3.4.2 A senior master may not have more than three pupils at any one time.

3.4.3 Unless the Chief Executive grants approval in writing, a junior master may not have more than one pupil at any one time.

3.4.4 If a pupil is unable to nominate any necessary master, then the Chief Executive of the Bar Association must be informed by the pupil, so that the Chief Executive might make a nomination on behalf of that pupil.

3.4.5 Upon the request of a master or pupil and with the written consent of the Chief Executive of the Bar Association, a pupil may change a master or masters, and any such change shall be recorded in the Register and shall not affect the period of pupillage already completed by the Pupil.

3.4.6 In the event that a master shall not be accessible to a pupil for more than one month during the year of pupillage, then that master shall arrange for the pupil to have access to another master of appropriate experience. The pupil shall, as soon as possible, inform the Chief Executive of the Bar Association in writing of the arrangement made.

3.4.7 Insofar as it is practicable, masters are encouraged to have their pupils devil for them.

3.5 Duties of Pupils and Masters

During pupillage:

3.5.1 In this section “Court orientated work” means conferences or other preparation for a hearing and actual court or tribunal attendances.

3.5.2 A pupil must meet with each of their pupil masters within two weeks of the pupil commencing pupillage so as to plan and commit to the pupillage year (‘the initial meeting’);

3.5.3 At the initial meeting, the pupil and masters must plan for the pupil to meet with either the senior or junior master at least once a month to discuss the pupil’s progress at the Bar (‘the monthly review’);

3.5.4 Within two weeks of the initial meeting, the pupil must give written notice to the Chief Executive (copied to both masters) that the initial meeting has occurred;

3.5.5 If the initial meeting does not occur within four weeks of the pupil commencing pupillage, the pupil must write to the Chief Executive (copied to both masters) giving reasons why and stating when the initial meeting is to take place.

3.5.6 At each monthly review, the pupil must inform the senior or junior master:-

(a) of the work undertaken by the pupil with either master in the preceding month so as to reveal the pupil’s understanding of that work;

(b) subject to any conflict arising between any private work undertaken by the pupil and either master concerned, of the substance of private work undertaken by the pupil and any difficulties encountered;

3.5.7 In the first six months of pupillage:

3.5.7.1 a pupil must undertake a minimum of forty hours of court orientated work (at least twenty hours of which must comprise actual court or tribunal attendances) with either master or another barrister with greater than five years experience at the Bar;

3.5.7.2 at least 20 hours of the court orientated work must be undertaken in the first three months of pupillage;

3.5.8 In the second six months of pupilage, the pupil must undertake a minimum of twenty hours court orientated work (at least ten hours of which must comprise actual court or tribunal attendances).

3.5.9 At any time during pupillage, the senior master (in consultation with the junior master), may by notice in writing to the pupil and the Chief Executive, increase (by a factor of up to 50%) the remaining hours of court orientated work the pupil still has to complete. The senior master’s decision to so act must be based on his or her belief that the pupil requires more intensive training. The pupil may request the decision to be reviewed by the Bar Council.

3.5.10 The senior or junior master must report to the Chief Executive in writing (with a copy to the pupil) any persistent or inexcusable non-compliance by the pupil with these Rules. The Chief Executive must refer such report to the Bar Council.

3.5.11 A pupil must perform such practical exercises, attend lectures or seminars and participate in such exercises or activities as the Bar Association shall from time to time direct.

3.5.12 Masters must make themselves available (as is practicably possible) to enable their pupil to obtain assistance from them as required.

3.5.13 A pupil must attend any CPD events directed by the Bar Association from time to time (whether those CPD events are part of or in addition to the annual mandatory CPD requirements referred to in rule 4.3).

3.5.14 A pupil will not receive any fee in respect of anything done with respect to the the matters set out in 3.5.2-3.5.13.

3.5.15 Each pupil shall:

(a) keep a record of the hours engaged in court orientated work, attendances at the initial meeting and each monthly review in the form set out in Schedule 6; .

(b) forward their record of pupilage to the Bar Association upon conclusion of the nominal 12 month period of pupillage (or any extended period).

Attendance at Court

3.5.16 A pupil shall be entitled to attend with a master when the master appears in court.

3.5.17 The pupil shall be entitled to sit at the Bar table with the master.

3.5.18 On any such occasion the pupil shall be robed but will not have an appearance announced, nor take part in the case, nor charge any fee.

3.5.19 The master shall announce to the Court as a matter of courtesy the presence of the pupil at the Bar table.

Completion of Pupillage

3.5.20 The satisfactory completion of pupillage shall be a personal obligation upon a barrister.

3.5.21 Failure of a pupil without reasonable cause to perform the duties of pupillage including such additional requirements as the Bar Council may from time-to-time direct in lieu of requirements not performed in the currency of pupillage to the satisfaction of the Council shall constitute misconduct in a professional respect.

3.5.22 Upon conclusion of the nominal twelve month period of pupillage, the pupil must give written notice to the Chief Executive (copied to both masters) that he or she, to the best of their belief, has complied with the requirements of pupillage as set out in these Rules.

3.5.23 Each master, upon receipt of the pupil’s written notice mentioned in Rule 3.5.22, must forthwith certify in writing to the Chief Executive (copied to the pupil) whether or not the pupil, to his or her satisfaction, has undertaken pupillage as required by these Rules.

3.5.24 The Bar Council may, on terms it sees fit, extend the twelve month period of pupillage if:

(a) a senior master has given notice pursuant to clause 3.5.9;

(b) there is an unfavourable certification by either master; or

(c) the Bar Council in its discretion thinks that the period of pupilage should be extended for any reason.

Administration and Exemptions

3.5.25 The Bar Council (or a nominated sub-committee), shall have responsibility for the implementation and supervision of the Pupillage Rules.

3.5.26 The Bar Council may exempt a barrister from full or part compliance with the Pupillage Rules, upon such conditions as it shall think fit. It shall have regard to all relevant circumstances, including:

(i) the barrister's previous experience in performing barrister’s work;

(ii) the barrister's age, education, qualifications and legal experience;

(iii) the nature of the barrister’s work.

3.5.27 Rules 3.2.1, 3.2.2, 3.5.1 to 3.5.10, 3.5.15, 3.5.22, 3.5.23 and 3.5.24 only apply to pupillage commenced by a barrister on or after 1 July 2010. Rules 3.5.17 and 3.5.18 (as in force prior to the amendments made to these Rules on 31 May 2010 continue to apply to a barrister who commenced pupillage prior to 1 July 2010 (see schedule 7 to these Rules which contains the previous Rules 3.5.17 and 3.5.18).

 PART 4 - COMPULSORY CONTINUING PROFESSIONAL DEVELOPMENT (CPD)

Introduction

4.1 These Rules shall:

(a) be known as the Continuing Professional Development Rules,

(b) come into operation on 1st July 2004, and

(c) apply to all barristers from 1st July 2004.

4.2 For the purposes of these Rules:

“Accredited CPD event” means a CPD event accredited pursuant to these Rules

“Association” means the Bar Association of Queensland

“Bar Council” means the Council of the Bar Association of Queensland

“Barrister” has the same meaning as the term has in the Legal Profession Act 2007 viz, a local legal practitioner who holds a current local practising certificate to practise as a barrister granted or renewed by the Bar

“CPD” means Continuing Professional Development

“CPD Committee” means the Continuing Professional Development Committee of the Association

“CPD event” includes activities such as conferences, discussion groups, lectures, seminars or workshops related to the law or the practice of law

“CPD point” means a point allocated to an accredited CPD event in accordance with these Rules

“CPD record” means the record of a barrister’s engagement in CPD events

“CPD year” means each twelve month period commencing on 1 April and concluding on 31 March

“Practising Certificate” means a practising certificate granted or renewed by the Bar pursuant to the Legal Profession Act 2007.

The Mandatory CPD Requirements

4.3

(a) Subject to sub-paragraph (b), any barrister to whom these Rules apply must accrue a minimum of 10 CPD points during each CPD year.

(b) Subject to Rules 4.20 and 4.21 a barrister who first obtains a practising certificate,or returns to practice and obtains a practising certificate, after 1 May in any CPD year must accrue a minimum number of CPD points in accordance with schedule 4.

(c) A barrister who has not accrued the minimum CPD points requirement in a CPD year may, only with the prior written approval of the Chief Executive, accrue points in the period 1 April to 30 June following that CPD year. Any such points cannot be taken into account for any other CPD year.

(d) Each year a barrister must accrue:

(A) at least one CPD point in the Mandatory Strand of Ethics; and

(B) at least one point in one of the following Mandatory Strands:

(i) Advocacy

(ii) Practice Management

4.4 Barristers shall complete the mandatory requirements by:

(a) attendance or teaching at CPD events organised by or on behalf of the Bar or accredited by the CPD Committee,

(b) engaging in such other forms of professional development (eg, undertaking a post-graduate course at a university) as are approved by the CPD Committee.

4.5 The Bar Council may, if it thinks fit, specify:

(a) the nature, content and format of particular courses and other activities which may be undertaken by barristers in order to satisfy the mandatory requirements;

(b) the minimum number of CPD points which must be accrued in each CPD year in particular areas of practice or study.

4.6 The Bar Council:

(a) may vary the minimum number of CPD points which must be completed in order to satisfy any of the mandatory requirements,

(b) may impose a condition on a practising certificate which requires a barrister, or class of barristers, to undertake a specific type of CPD, and

(c) may issue guidelines on the application of these rules; and

(d) may vary the CPD rules from time-to-time.

Accreditation

4.7 All CPD events conducted by or on behalf of the Bar are accredited CPD events.

4.8 The CPD Committee may determine that a provider of CPD events is an accredited CPD provider in which case any CPD event conducted by that provider is an accredited CPD event.

4.9 The CPD Committee may determine, on application by a barrister or otherwise, that a CPD event:

(a) is an accredited CPD event for the purposes of these Rules; and

(b) that participation in the particular event will entitle a barrister to accrue a specified number of CPD points.

4.10 The CPD Committee shall determine that a CPD provider is an accredited CPD provider if it is satisfied that the CPD events provided by the provider are:

(a) of significant intellectual or practical content and deal primarily with matters related directly to the law or the practice of a barrister,

(b) conducted by persons who are qualified by academic or practical experience in the subject or subjects covered, and

(c) relevant to a barrister’s professional development.

4.11 The CPD Committee shall determine that a CPD event is an accredited CPD event if it is satisfied that the CPD event is:

(a) of significant intellectual or practical content and deals primarily with matters related directly to the law or the practice of a barrister,

(b) conducted by persons who are qualified by academic or practical experience in the subject or subjects covered,

(c) relevant to a barrister’s professional development.

Earning CPD Points

4.12 Subject to these Rules, a barrister earns a CPD point for each completed hour of engagement in an accredited CPD event.

4.13 Subject to these Rules, where a barrister is involved in teaching or instruction at an accredited CPD event then that barrister is deemed to have completed three CPD points for each hour for which the barrister is engaged in teaching or instructing. In any other case, the CPD Committee will, on application by the barrister, determine the number of CPD points which a barrister will be deemed to have completed. The CPD Committee may assign a value in multiples of half points where appropriate.

4.14 The CPD Committee may, on written application by a barrister, determine that a number of CPD points shall be regarded as having been completed by a barrister through other methods of learning (such as post-graduate study).

CPD Record

4.15

(a) Every barrister to whom these Rules apply shall keep a record of his or her performance of the mandatory requirements in the form set out in schedule 5.

(b) Every barrister to whom these Rules apply shall forward to the Association, a copy of that CPD record within 14 days of the conclusion of the CPD year.

4.16 A barrister must retain the CPD record for each CPD year for a minimum of three years.

Dispensation

4.17 The Bar Council, may in relation to any barrister or class of barristers, waive any or all of the mandatory requirements in whole or in part, on such conditions as it may think fit.

4.18 An application by a barrister for dispensation from the requirements of these Rules for a CPD year must:

be submitted in writing to the CPD Committee,

be made as early as possible and, except in special circumstances, not less than two months before the end of the CPD year to which it relates,

set out the grounds on which the dispensation is sought (e.g. maternity/paternity leave, lengthy illness, lengthy interstate trial, etc);

include any other material which is considered by the barrister to be relevant.

Failure to Comply with the Mandatory Requirements

4.19 Where a barrister to whom these Rules apply fails to satisfy the mandatory CPD requirements or submits a false or misleading CPD record:

the Bar Council may refuse to renew the barrister’s practising certificate, and

such conduct may be regarded by the Bar Council as constituting unsatisfactory professional conduct within the meaning of s. 418 of the Legal Profession Act 2007.

 

Richard Douglas S.C.

President

Bar Association of Queensland 



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