Bar Code of Conduct II

Table of Contents

Independence

Barristers must not enter into a professional partnership or any other form of association to seek to practise the profession through a corporate entity. They must not enter into any profession, partnership or relationship, including the sharing of briefs with another barrister.

Barristers do not breach the Code of Conduct by sharing facilities, premises, or costs of practice including capital or operating costs with other barristers.

A barrister does not breach the Code of Conduct by carrying out a task of research or opinion given to the barrister by another barrister, provided that it is done so on terms that are mutually acceptable provided that the contract does not breach the retainer.

Law Library

The Law Library is the central and primary place of practice for the Bar. This includes the law libraries in Dublin, Cork and Church Street. It is desirable that all practising barristers be members of the Law Library.

Membership of the library is confined to full time practising barristers subject to limited exceptions.

Barristers taking up full time public or private appointments which is incompatible with their role as barristers should cease to be members of the Law Library.

Pupillage

Barristers must complete a 12-month pupillage with a master who is registered as such with the Bar Council unless expressly excluded. A 2-year pupillage is common. During the pupillage they are practising barristers subject to the Code and as such are entitled to accept briefs on their own behalf.

The Bar Council maintains a register of masters. Junior barristers who are seven years in practice may accept a pupil. Exceptionally, more junior barristers may accept a pupil.

Masters must ensure they carry out their obligation to their pupils in accordance with guidelines issued by the Bar Council.

Admission & Practising

A former solicitor who is called to the Bar shall have the same rights and duties as any other barrister and shall be admitted to membership of the Law Library immediately, free from restriction or any hindrance.

Barristers must have current practising certificates in accordance with Bar Council regulations. There are provisions regarding issue, revocation, suspension and amendment of practising certificates.

The Bar Council may specify requirements in relation to continuing professional development. Barristers must comply with the schemes and rules.

Admission to the inner bar (Senior Counsel) is limited to practising barristers. Only barristers of professional eminence should apply for admission or be admitted.

It is unprofessional conduct to apply unless they have a bona fide intention to practice as a member of the inner bar. Members enjoy a status of professional eminence by virtue of practice at the Bar.

There is no requirement for clients to retain senior counsel. This is a matter for the instructing solicitor.

Fees

Barrister fees are based on work done. They are entitled to charge for work undertaken or to be undertaken whether or not it involves appearance in court. The basis and method must be permitted by law.

The barrister is entitled to take into account when making or nominating a fee, features of the instruction which bear upon the commitment which is undertaken. This includes the complexity of the subject matter, length and time of the hearing, amount or value of any claim in issue.

The level of the fee should not be calculated solely on the basis of the value of the case or directly proportionate to its value. It may be based on the time in which the work is, or was required to be undertaken and other special features.

Where no fees have been agreed in advance, the barrister is entitled to a proper and reasonable fee having regard to the nature and extent of the work undertaken. He is not bound to reduce his fee with reference to the outcome of the matter.

A barrister does not enter a contract with a client or solicitor. He cannot sue for his fees. The solicitor will have a contract with the client and is entitled to recover the relevant cost. The solicitor has an ethical duty, which will be enforced by the Law Society to pay the barrister’s fee

Basis for Remuneration

Barristers may not undertake work at a salary. Barristers are not obliged to accept instructions or a brief without having agreed on a fee at which they are prepared to accept or without having a reasonable opportunity to consider the fee offered in the light of the nature and extent of the work offered. Barristers are obliged to return papers if they decide not to accept the brief by reason of the inadequacy of the fee offered.

Barristers may not accept instructions on the basis that the payment will be a subsequent effect as a percentage of the award. Where barristers accept a brief on which no fee has been marked by the instructing solicitor or agree they are entitled to mark a proper and reasonable fee having regard to the nature of the work. They are not bound to reduce their fee by reason of the outcome.

Where barristers have accepted a brief on the basis their fee will be discharged before a hearing; they are entitled to withdraw from the case if not paid by the agreed date. A barrister shall, when requested from a solicitor up the fee they will charge if instructed by that solicitor for their client.

Barristers are entitled to charge a brief fee where they have been actually briefed for hearing, even if settled. This is a matter of agreement between the Barrister and instructing a solicitor.

Notice of Fees

When taking instructions to provide services or as soon as practicable thereafter, the Barrister must, on request, provide the instructing solicitor or a client in a direct professional access scheme case particulars of writing setting out the charges.

When set charges are not possible or practicable, an estimate as near as may be of the charges or where the provision of particulars of the actual charges or an estimate is not possible, the basis on which the charge must be set out. The format of the particulars is at the discretion of each barrister.

Where a barrister is asked to provide an estimate of fees that might be charged for the Barrister’s instruction in any matter, the estimate shall not prevent the Barrister from accepting definite instructions from another party involved.

Direct Access

The Bar Council may make provision for direct professional access to barristers by such persons as may be authorised.

Barristers may be instructed by foreign lawyers without the intervention of an Irish solicitor where the instruction involves court work in Ireland. Barristers maintaining a place of practice outside Ireland may practise there in association with a foreign lawyer.

A barrister must promote and protect his client’s interest by all proper and lawful means. He must do so without regard to his own interests. These principles are reflected in the Code of Conduct of the Bar of Ireland. These are set out in a separate chapter.

A barrister must hold himself out as willing to appear in court on behalf of and give advice and other services to any client. He is bound to accept instructions in the field in which he professes, at a proper professional fee. In special circumstances, he may be justified in refusing papers.

Practice

Papers delivered to a barrister remain the client’s property.

The client is not obliged to retain senior counsel in any case. The instructing solicitor may advise him strongly in this regard or not.

A barrister is not obliged to accept instructions or a brief without having agreed on the fee, having a reasonable opportunity to consider the fee in light of the nature and extent of the work. Where a barrister elects not to accept a brief due to the inadequacy of the fee, he must promptly inform the instructing solicitor. A barrister may not accept fees on the basis of payment by a percentage or proportion of the award.

Role of Counsel

Counsel are almost invariably briefed in the higher court. They will be briefed in most circuit court cases; they play the principal role is an advocate. They elicit evidence from their own client’s witnesses and cross-examines their opponent’s witnesses.

The barrister’s advice in the case relates both to law, presenting the case and witnesses in the best possible light. The barrister’s work may be divided into advocacy or court work or paperwork, including advisory work and preparation for the trial. The primary and best-known function is advocacy.

The solicitor generally brief the barrister or counsel with witness statements, details of the facts of the case, documents and narrative. The barrister’s role is to optimise, mobilise the evidence and optimise the case from his client’s perspective. The counsel’s strategy is contained in the advice and proof.

Brief

A brief will generally consist of a structured, tabulated and indexed document containing pleadings in the case, i.e.

the summons, defence and equivalent document.
important documents,
statements of witnesses taken by the solicitor,
maps, drawings and documents, relevant correspondence,
a summary of the case,
instruction to the barrister and counsel’s advice and proof.

Pleading

However, all legal proceedings require the extensive drafting of the pleadings, settling of documents, advising on proofs. Pleadings are statements of the facts on which the claim for legal relief is based.

Pleadings are usually drafted by Junior Counsel. Senior Counsel may be involved n settling proceedings may not be allowed. In exceptional cases, the cost of the second Counsel may be permitted.