The recent Bar Association of Queensland Annual Conference held in Brisbane was themed ‘Advocacy – The Art of Persuasion’. The two-day event included sessions designed to assist barristers develop skills in both written and oral submissions, the conduct of mediations and some of the current trends in advocacy. Many of the sessions also emphasised barristers’ ethical obligations and advice on how best to deal with these as they arise in a professional manner.
One of the highlights of the conference was an interactive session titled ‘Ethical limits of persuasion’. Chaired by The Hon. Justice Logan RFD of the Federal Court of Australia, it was presented with the participation of The Hon. Justice Byrne AO RFD of the Supreme Court of Queensland, The Hon. Justice Murphy of the Family Court of Australia and His Honor Judge Rafter S.C. of the District Court of Queensland.
Three Scenarios, Three Perspectives
This session took on the unique format of providing the audience with three different legal scenarios and asking them to identify any ethical issues in the scenarios and how they would address them were they counsel in the matter.
The audience was advised that, like many ethical dilemmas, there was no right or wrong answers to the questions being put to them. The aim of the session was to prompt ethical discussions, which it did.
The scenarios provided were each ethical minefields. The first was a rape and murder trial where the DNA found matched that of two identical twin brothers. It followed that the defence counsel was instructed by his client (twin A) to tell the jury that his brother (twin B) was not the murderer and couldn’t be. If the jury did not believe that twin B was the killer, twin A would be found guilty. A discussion among the audience ensued with many different opinions as to whether the defence counsel should follow the clients instructions and some even suggesting counsel should no longer act for twin A. The presenters further asked the audience if they felt s 79 of the Australian Bar Association Barristers’ Conduct Rules, which deals with what a Barrister should do if their client confesses guilt to them but maintains a plea of not guilty, should be engaged. An agreement could not be reached.
Confidentiality and Ethical Obligations
Scenario two involved counsel briefed to appear in the Family Court for the Independent Children’s Lawyer. A conflict of interest arises for the psychiatrist who is providing a report to the court when they realise that the adult child of the father in the matter was treated by the psychiatrist many years earlier. The psychiatrist does not wish this to be disclosed because the therapy was confidential and if it is disclosed it could have serious implications for the patient’s mental health. The audience was then asked who their client was in this matter and what ethical obligations they have.
An interesting issue that came up during this discussion was a question of what systems barristers use to keep track of who they have represented to avoid conflicts of interest. Surprisingly many members of the audience admitted that they do not have a system, and merely rely on their memory, something the speakers recommended they change.
Navigating Conflicts of Interest
The final scenario also related to conflicts of interest. It was a criminal matter where participants were asked to consider what they felt the issues and options were when they learn just days before a trial that a witness had previously been your client in another matter. The suggestions to overcome this issue included having another counsel briefed for the limited purpose of cross-examining the witness; seeking permission through the solicitors for the former client to act in the matter or withdrawing from the matter.
The take-away message from this session was that ethics is an ongoing issue for barristers. They are faced with these challenges on a day to day basis and must constantly be vigilant. Support and practice management tools to assist may help but generally barristers were advised to stay alert and act quickly ensuring that they fulfill their obligations to their client and the court.