Effective from 8 August 2011, the former NSW Barristers' Rules will be replaced by the Barristers' Conduct Rules.
A comprehensive comparison of the two will be the subject of a later blogpost, but two differences immediately jumped out at me.
First, the former rules were, according to Rule 3, "made in the belief that...the role of barristers as specialist advocates in the administration of justice requires them to act honestly, fairly, skilfully, diligently and bravely." The new rules no longer believe that barristers are required to act bravely.
Secondly, previously a barrister could return a brief under Rule 99(c) where "fees have not been paid reasonably promptly or in accordance with the costs agreement, and have remained unpaid after reasonable notice by the barrister to the instructing solicitor or client, as the case may be, of the barrister's intention to return the brief for that reason." Now, the only relevant power to return a brief for non-payment of fees appears to be under 99(m) "in accordance with the terms of a costs agreement which provide for return of a brief."
So, for those barristers with a costs agreement, it is time to amend it to provide specifically for the power to return a brief for non-payment of fees. For those barristers who don't have costs agreement (relying solely upon the fee disclosure regime), it may be time to have one.
UPDATE: It has been pointed out that new Rule 99(d), which has the chapeau "a barrister may refuse or return a brief to appear before a court", provides that a barrister may do so "if the barrister has reasonable grounds to doubt that the fee will be paid reasonably promptly or in accordance with the costs agreement." This, it is argued, provides a power to return the brief upon non-payment of fees. This seems to me to ignore the tense in which 99(d) is expressed, which contemplates the barrister having a belief about non-payment of fees that have not yet been rendered. While this belief might be evidenced by the fact of non-payment of past fees, the non-payment itself does not give rise to an entitlement to return the brief, and if the client were able to satisfy the barrister that future fees would be paid on time, in my view there would be no entitlement to return the brief.
UPDATE: It has been pointed out that new Rule 99(d), which has the chapeau "a barrister may refuse or return a brief to appear before a court", provides that a barrister may do so "if the barrister has reasonable grounds to doubt that the fee will be paid reasonably promptly or in accordance with the costs agreement." This, it is argued, provides a power to return the brief upon non-payment of fees. This seems to me to ignore the tense in which 99(d) is expressed, which contemplates the barrister having a belief about non-payment of fees that have not yet been rendered. While this belief might be evidenced by the fact of non-payment of past fees, the non-payment itself does not give rise to an entitlement to return the brief, and if the client were able to satisfy the barrister that future fees would be paid on time, in my view there would be no entitlement to return the brief.
r37 of the new rules requires barristers to act fearlessly - so maybe they still have to be brave after all :)
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