It should be a rare event for most junior counsel, however, there may be times in your career where you must consider how to deal with conflicts with Senior Counsel. These conflicts might arise in various situations.
a. Legal conflicts in giving advices or opinions, in pleadings or in conferences;
b. Conflicts in making forensic decisions, such as calling of witnesses, cross examination or submissions;
c. Conflicts concerning ethical issues.
The approach that a junior will be required to take where a conflict arises with your leader will depend upon the type of conflict that has arisen.
The Role of Junior Counsel
There are two matters that you should bear in mind when briefed with a leader:
a. The primary function of the junior is to assist the leader; and
b. The briefing of a leader does not excuse the junior from complying with his or her own duties and obligations.
Duties
Being briefed as a junior is not a free ride. It is a team effort.
The role of junior counsel is not diminished simply because a leader has been briefed, and nor does it excuse junior counsel from complying with his or her duties and responsibilities to the Court, the client and the opponent.
Simply relying on or following the views of the leader does not automatically discharge your obligations. As junior counsel, you are required to give independent and detailed consideration to the conduct of the client’s case.
In Yates Property Corporation Pty Ltd v Boland (1999) 85 FCR 84, the Full Court of the Federal Court of Australia said, at 111:
“But when a case is a difficult or complex one or when it involves a substantial sum of money, the client or the solicitors will form the view that it requires the attention of two counsel and then leading counsel is retained. That does not mean that the role of junior counsel is diminished. On the contrary, as anyone who has practiced as leading counsel will know, senior counsel places great reliance on junior counsel for all aspects of the preparation of a case for trial. It was quite wrong of junior counsel in those circumstances to act on the assumption that he had no responsibility for any aspect of the advice and decision making involved in bringing such a large case to trial.”
In broad terms, the case involved the valuation of land, and the method by which that valuation should occur. In terms of detailing the obligations of the junior counsel, the Full Court of the Federal Court said:
“It is not possible to escape from the conclusion that [junior counsel] was negligent in the performance of his retainer. He was negligent in thinking that he was under no obligation to advise [the client] about the formulation of its claim. He was negligent in his appreciation of how market value and special value were to be determined. He was negligent in not suggesting either to [the client, the solicitor, or senior counsel] that [the client] was entitled to receive compensation for the work it had performed either as part of the market value of the land or in the assessment of its special value. The reason why [junior counsel] was bound to consider how [the client’s] claim should be formulated and give advice on that issue is that it was plainly foreseeable that if such advice was not given [the client] might suffer loss and, accordingly, it was the function of counsel, both junior and senior, to take care to avoid that loss.”
Ultimately, the High Court overturned the decision finding that there had been no negligence in the circumstances, and that in any event, advocates immunity applied, but the case is useful in highlighting that junior counsel’s role brings with it independent duties and obligations.
Aside from the necessity of complying with his or her own professional and ethical obligations, the independence of mind of a junior can also be a valuable tool in ensuring that points are not missed and / or contrary arguments are addressed.
Whilst your duty is ultimately to the court, and to your client, you should not overlook the importance of professional courtesy, loyalty and the traditional etiquette and customs of the Bar in your relationship with your leader.
Maintaining a good relationship with your leader when dealing with conflicts is essential.
a. If the relationship between the leader and the junior breaks down, the client’s case will probably suffer.
b. The junior is also unlikely to be recommended for work in the future by that leader, or indeed, the solicitor.
An active junior who provides detailed consideration of each aspect of the preparation of a matter for trial serves a valuable role in advancing the client’s case by assisting the leader in identifying the legal and factual strengths and weaknesses in the client’s matter. The client is paying for two minds to be applied to his case, and is entitled to expect that counsel, both senior and junior, will each give consideration to the client’s cause.
Senior Counsel are recognised for their experience and expertise in the law. The shared experience of working with Senior Counsel, the joint preparation and presentation of a client’s case, the mutual evaluation of evidence or points of law, and the opportunity of discussing the tactics and critical decisions called for in a trial presents a junior with a unique learning experience that should not be squandered.
Legal Conflict in Advices / Conferences / Pleadings
A conflict on legal matters can occur in various different contexts:
a. Advices;
b. Conferences;
c. Pleadings
Advices
Rule 76 of the Barrister’s Rule 2004 provided:
“A barrister must give the barrister’s truthful opinion on any matter submitted to the barrister for advice or opinion.”
There is no identical rule in the 2011 Barrister’s Rules, but that does not relieve a junior counsel from their obligation to give only their truthful opinion in any advice.
Your ethical and professional duties to your client, and the administration of justice require that you give your honest or truthful opinion.
But what to do when that puts you in conflict with your leader?
In all but the most exceptional cases, you will give a joint opinion with your leader without dissent. That is generally what you will have been briefed to produce.
In preparing that joint opinion, you will have exchanged and corrected various drafts, and discussed any points of difference.
In most cases, even if you have a separate view to the leader on an important aspect of the advice, if you talk it through with the leader, you will be able to resolve your differences or find a way to incorporate your dissenting view into the advice or opinion.
Where, despite your attempts to resolve any points of disagreement, the joint advice or opinion does not reflect your honest view, you may in those circumstances be under an obligation to produce a separate opinion, or express that you have a differing opinion on the topic in the advice.
It is rare, but I have heard of it being done.
In those exceptional cases where that becomes necessary:
a. Ensure that you inform the leader of your different point of view.
b. Ensure that you inform the leader of your intention to provide a separate opinion;
c. Ensure that you deliver your advice or opinion to your leader before it goes to the solicitor or client to allow the leader time to consider it.
In most cases, it won’t assist the client to have two differing advices on the same subject. In some situations, this might assist the client, but perhaps no more than by highlighting the uncertain nature of the law on a particular topic, or that there are competing views on the topic.
Conferences
What do you do when you meet with your leader, solicitor and client in conference, and the silk is working towards giving their opinion to the client, and you can see that something has been missed or overlooked?
Whilst the temptation might be to immediately jump in and correct the silk, and impress the solicitor with you knowledge of the facts or law, as a general rule, interventions to correct your leader in conference should be avoided.
They have a tendency to create tension, cause embarrassment, and most importantly, to cause the client to lose faith in the leader.
Of course, it might also be the case that the silk is right, and you are the one embarrassed when you seek to intervene, and are corrected in front of the solicitor or client!
What do you do when there is a need to intervene? You will generally be confronted with a few different options:
a. Keep quiet, and let the leader give the incorrect advice, and seek to remedy it after the conference by way of an updated advice or further conference.
i. Sometimes this might be the better option, but it does not fill the client with confidence in the silk, or indeed the solicitor, to receive advice on a matter, and then that afternoon, or perhaps the next day receive advice different to that given in conference.
b. The other option is to intervene.
i. If you choose this option, do it diplomatically. It’s probably best not to jump right in and say “you are wrong”, however so tempting it may be. You will normally be able to find a diplomatic way to deal with interventions at conference.
ii. Where you know that a High Court decision has just come down overruling the case the silk was relying on, you might say “You have identified case X as a potentially important to the client’s case, so I will prepare a review of some of the recent case law to see if there is any recent cases that might cast some doubt on it.”
iii. Where it is a factual matter, consider something like “I understand that you are saying that a critical issue in this case appears to be whether there is any evidence of fact X. I think witness A might have said something on this topic, but I will need to review the evidence. At the moment we are proceeding on the basis there is no evidence of fact X, but let me go away and review this.”
iv. An interjection along those lines should hopefully alert the silk to the fact that something might have been overlooked, and it allows the silk to give their opinion subject to your further investigation.
v. This will mean that if the advice does need to be corrected, it won’t come as such as a surprise to the client, as the potential need for further investigation has been raised.
A modest intervention in conference by flagging that there might be a need for further examination of an issue is generally better than a direct challenge to the silk in the conference.
A direct challenge will result in only two outcomes, you will embarrass the leader, or you will be wrong, and you will be embarrassed.
How to avoid the need for intervention or correction in conference?
The best method of avoiding the need to intervene in conference is to meet with your leader shortly before the conference to discuss the issues that will be raised in conference, what advice might be given, and to exchange views.
Remember, your role is to assist the leader.
Tell the leader what your views are before the conference begins. Don’t be afraid to ask the leader what advice they plan to give in conference. Your leader should welcome this as an opportunity to 
ensure that they have not overlooked anything, and that any contrary arguments are considered.
Another useful method might be to prepare an agenda for the conference, and provide it to the silk well in advance.
Adopting either or both of these methods should generally avoid the need to intervene in conference.
Pleadings
In most cases where you appear with a leader, it will be the junior’s task to draft the pleadings.
Your task in drafting pleadings for silk to settle is to assist the leader by producing a draft that they are happy with.
Where a difference in opinion as to how pleadings should be drafted occurs between you and your leader, a different approach is required depending upon what the difference is.
Where the difference is merely one of expression, or style, you should do your best to follow the silk’s requirements.
Where the difference is over whether a cause of action or defence is open as a matter of law, or whether sufficient grounds exist to plead fraud or criminality, it is not good enough to simply revert to Senior Counsel.
Even though you might be the junior, your duties and obligations as counsel don’t cease simply because you have a leader.
I think that in most situations, the issue will be capable of resolution by raising the issue with the silk, and discussing it with them. Good communication is the key.
a. Discuss it with your leader;
b. Consider providing alternative paragraphs for the silk to review;
c. If necessary, seek the advice of an Ethics Counsellor.
Where, despite your attempts to resolve the matter, you have a strong view that a party should be joined, or a cause of action pursued, and senior counsel disagree, you may need to alert your solicitor to ensure that you discharge your independent obligation to the client. You will also need to consider exactly what it is you must do to discharge your obligation to the Court.
Ethical Conflicts
Ethical conflicts with Senior Counsel should hopefully never arise.
But, if they do, seek advice from an Ethics Counsellor.
The President of the Bar Association has appointed a number of silks that fulfill the role of Ethics Counsellors.
The Ethics Counsellors are drawn from a wide selection of practice areas.
There is a list of 21 Ethics Counsellors listed on the Bar Association website.
If you need them, use them.
Forensic Decisions
Disagreements concerning forensic decisions fall into a separate category.
A barrister is required to exercise independent forensic judgments called for in the case.
Generally, the client will have retained Senior Counsel because the matter is complex or important. In those circumstances, the client will generally expect that the Senior Counsel will be responsible for making the difficult decisions, and handling the more complex aspects of a trial.
Where the leader is examining witnesses, or cross examining witnesses, decisions that rely on forensic judgments such as:
a. Questions to be asked in cross examinations of witnesses;
b. Style of questioning to be adopted;
c. Witnesses to be called;
d. Submissions to be made on the law or the evidence are generally decisions to be made by the leader.
In some situations, it will be the junior who is on their feet and required to make the necessary forensic decision required at that particular time. Thorough preparation and discussion of forensic matters between counsel in advance of trial is the best method of avoiding conflict on forensic decisions.
Discuss your views on forensic decisions with the leader, but ultimately, where the matter is simply a difference of opinion on how forensic judgments should be exercised, the barrister who is on their feet has the responsibility for making those decisions. Simply because you are the junior does not mean that you are entitled to proceed in a manner that you consider betrays the significant rights and privileges granted to you as a barrister in conducting a trial.
Liam Dollar
