Briefing a Barrister
WORKING WITH A BARRISTER
There are two ways that a barrister can be briefed. The first is indirect – the client approaches a solicitor first, who does the initial work before referring the case to a barrister. The second is direct – a client approaches a barrister directly.
The Legal Profession (Barristers) Rules allow for direct access. Direct access, where a client briefs a barrister directly, instead of going through a solicitor, is not common. On accepting a brief directly from a client, a barrister has an obligation to inform his or her client as to whether or not the case may require the involvement of a solicitor. Barristers must also inform their clients if the particular legal service required is not barrister’s work.
Under the cab-rank principle, barristers must generally accept any brief brought to them by a solicitor that is within their area of expertise. Whilst barristers are bound to represent all clients regardless of their own personal opinion of the matter, they are not obliged to accept briefs directly from clients.
BARRISTERS’ RIGHT OF APPEARANCE
The right to appear on behalf of another person in a court or tribunal is not automatic. A barrister’s right of appearance before a court is based on his or her inclusion in a list of legal practitioners kept by the court (called ‘the roll’). ACT barristers, who are admitted to the roll of the Supreme Court of the ACT and hold a current Practising Certificate, have a right of appearance in the following Courts:
- Supreme Court of the ACT
- ACT Magistrates Court
- Children’s Court
- Coroners Court
- Indigenous Court
- Federal Circuit Court of Australia
- Federal Court of Australia
- High Court of Australia
- Courts in other jurisdictions
REGULATION OF BARRISTERS
Barristers in particular, are highly regulated and must comply with the Legal Profession Act 2006, the Legal Profession (Barristers) Rules, equitable and common law duties set down in case law, court rules and practice directions, and the largely unwritten rules of etiquette and custom.
Barristers who are members of the Association must also comply with the terms of the Association’s Constitution.
Pro bono publico, usually shortened to pro bono, is a Latin term referring to professional work undertaken voluntarily and without payment or for a reduced fee as a public service. The ACT Bar Association has a long history of providing pro bono legal services for a low or no fee. These services are provided not only to clients in the form of legal advice and court appearances, but also to governments as advice, submissions on proposed law reform, and involvement in the regulation of the legal profession generally. Pro bono work is an important aspect of the professionalism of the ACT Bar.
Most barristers undertake pro bono work, and some barristers have indicated that they are willing to do pro bono work for clients. Each barrister has discretion as to who he or she is willing to represent free or for a reduced fee, and in what circumstances.
Barristers are also able to accept a brief on a conditional basis. That is, a client is required to pay only if the matter is resolved successfully.