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Rules of Practice 1994 (S.R. 1994, No. 229)
|Requested: 28 Jun 2017|
|Consolidated as at: 17 Mar 2006|
PART 8 - Barristers
88. List of barristers
A person who elects to practise solely as a barrister must cause his or her name to be placed on the list under rule 98(d) of persons admitted and electing to practise solely as barristers.
88A. Professional indemnity insurance
A barrister must maintain professional indemnity insurance providing cover of at least 1 million dollars for each claim.
89. Title and work of barrister
(1) A barrister
(a) may use the title of "barrister" or "barrister-at-law"; and
(b) may display that title after the barrister's name only at that barrister's chambers.
(2) A barrister must limit his or her work to the following:
(a) appearing as an advocate;
(b) preparing to appear as an advocate;
(c) negotiating on behalf of the client;
(d) representing the client in a mediation;
(e) advising on documents relating to the client's affairs;
(f) providing legal advice or opinions;
(g) acting as a referee, arbitrator or mediator;
(h) any other work that is incidental to anything specified in this subrule that is not excluded by subrule (3).
(3) In performing any work referred to in subrule (2), a barrister must not
(a) institute proceedings in any court on behalf of the client in the barrister's name; or
(b) serve any process of any court; or
(c) make any demand on the client's behalf in the barrister's name, except as provided under subrule (2)(c) and (d); or
(d) conduct correspondence in the barrister's name or deal on behalf of the client with a person unless
(i) the correspondence is to seek information from a potential witness; or
(ii) the dealing is to conduct a conference with a potential witness; or
(iii) the dealing is for the purpose of work under subrule (2).
(4) A barrister requested by a person to do any work that does not come under subrule (2) or that is excluded under subrule (3) must inform that person
(a) of any relevant effect of subrules (2) and (3); and
(b) if applicable, that solicitors are able to perform the requested work.
(5) A barrister must not inform a person that he or she will perform work for that person on the condition of acceptance of instructions from a particular solicitor.
89A. Instructions from persons not legal practitioners
(1) A barrister may accept instructions to perform work from a person who is not a legal practitioner.
(2) A barrister who accepts instructions under subrule (1) must advise the client of the following:
(a) the effect of rule 89(2) and (3);
(b) that circumstances may require the client to retain an instructing solicitor at any time;
(c) any disadvantage the barrister believes on reasonable grounds the client may suffer if an instructing solicitor is not retained;
(d) the capacity of the barrister to perform the work alone compared with the capacity of the barrister and an instructing solicitor to perform the work;
(e) a fair description of the advocacy experience of the barrister.
90. Professional conduct
A barrister must not
(a) . . . . . . . .
(b) . . . . . . . .
(c) in his or her practice, receive, hold or pay out money for or on behalf of a person; or
(d) enter into an agreement, or have an understanding, with a legal practitioner for the sharing of fees, costs or profits; or
(e) practise in a partnership or under an arrangement that resembles a partnership.
(a) must not give a receipt for a fee unless that fee has been paid to the barrister; and
(b) may accept a post-dated cheque, promissory note or other negotiable instrument as payment for fees if
(i) the cheque, note or instrument is not paid until taxation of costs is determined; and
(ii) the date of the cheque, note or instrument is written on the receipt; and
(iii) the receipt is not given until on or after the date on that cheque, note or instrument.
92. Variation of fees
(1) Subject to subrules (2) and (3), a barrister must not enter an agreement for the variation of fees in relation to a matter according to the result or outcome of the matter.
(2) A barrister may enter an agreement for the variation of fees if, as a result of that agreement, the barrister is entitled in certain circumstances to a reduced fee or no fee.
(3) A barrister who undertakes work for an assisted person under any scheme relating to legal assistance may enter an agreement for the variation of fees which entitles the barrister to charge
(a) a normal fee as barrister if the assisted person obtains an order for costs against an opposing party; or
(b) a fee in accordance with the scheme relating to legal assistance.
93. Recovery of fees
A barrister may sue his or her instructing legal practitioner and client for fees payable to that barrister.
94. Acceptance of briefs
(1) Subject to subrule (2), a barrister must accept a brief in any court in which that barrister practises unless, as a result of that brief, the barrister is required to cross-examine a relative or friend.
(2) A barrister must not accept a brief
(a) in a matter in which the barrister has advised or drawn or settled pleadings for any other party, without the consent in writing of that party; or
(b) for or against a local authority of which the barrister is a member; or
(c) for or against a company of which the barrister is a member of the board of directors; or
(d) in a matter over which a tribunal of which the barrister is a member has jurisdiction; or
(e) in a matter in which the barrister has special knowledge of the case obtained when acting in the interests of the opposing party, without the consent in writing of that party; or
(f) for a party to an arbitration on any proceeding arising out of the arbitration or the award made at the arbitration, if the barrister has advised the arbitrator in relation to the arbitration; or
(g) in a matter in which the barrister may be required as a witness; or
(h) in an appeal from any decision, determination or award given after a hearing in which the barrister was a witness; or
(i) if the barrister knows or ought to know that his or her professional conduct may be called into question; or
(j) on the taxation of costs of the barrister's briefing legal practitioner; or
(k) in a matter in which the barrister has a financial interest in the outcome.
95. Ceasing to act
(1) If a situation arises, or is likely to arise, in which a barrister who is holding a brief may be required to give evidence, the barrister is to retire from the matter to which the brief relates if this may be done without undue prejudice to the barrister's client.
(2) If the professional conduct of a barrister who is holding a brief is, or is likely to be, called into question, the barrister is to retire from the matter if the barrister is satisfied that the prejudice to the client is greater if the barrister continues to hold the brief than if he or she retired from the matter.
96. Drafting of pleadings
A barrister, on instructions from a legal practitioner, may
(a) draft pleadings; or
(b) take a proof of evidence from a witness; or
(c) draft a will, contract or other instrument.
97. Reporting of cases
A barrister may report cases in court for
(a) a legal journal; or
(b) a legal periodical; or
(c) any law report.