Barristers’ Authority

Authority in Court

The courts will not generally inquire into the authority of counsel to appear, where he purports to represent a party.  Where more than one counsel appears, appropriate inquiries will be made.  Entry into f a retainer does not give counsel authority.  In order to take steps, a brief must be delivered.

Counsel is entitled to have control of the case and conduct it throughout.  His authority may be limited by the client, but only to a limited extent.  He may not limit his ordinary authority, take a subordinate position in the conduct of the case or share it with a client, even if the litigant is a barrister.

If the litigant instructs counsel, he may not be heard unless he revokes his counsel of authority and assumes conduct of the case himself.  Once the case is fairly before the court and counsel is seised of it, counsel’s authority may not be generally revoked.

If counsel agrees to a court order, with the client’s authority and consent, it may not be appealed.  A client cannot arbitrarily withdraw provided there is no element of mistake or surprise.

The authority of counsel extends unless expressly limited to the action and to all matters incidental to it, in the conduct of the trial.  Counsel need not obtain authority for matters within his ordinary authority.

Authority to Settle

Outside of litigious matters, acts of counsel bind the client where they are with express authority or when adopted or within the scope of ordinary authority.  In the context of property purchase, a purchaser may be affected by notice of document which has come to the knowledge of his solicitor or counsel in the same transaction with respect to the matter on which notice arises.

If a matter is settled in the presence of the client, the consent will be inferred.  He may have ordinary authority to settle or compromise the matter.  The authority of counsel applies to matters within the action.  Collateral matters may not be within the scope of his authority.

Authority may be limited by the client.  If the limitation is unknown to the other side and the settlement is within the ordinary authority of counsel, the court may refuse to set it aside.  However, the courts have been inclined to interfere at their discretion, where injustice would be caused by allowing the compromise to stand.

Statements made by counsel in the course of the trial or introductory proceedings are binding on the client unless repudiated at the time. Undertakings given in court should have specific authority. Pleadings signed by counsel may constitute a memorandum or a note for the purpose of the Conveyancing Act or the Sale of Goods Act so as to bind the client.

Settlement

Any order or judgment made by consent may be set aside on grounds that would invalidate a contract between parties.  A compromise may not bind the client if counsel is not aware of essential matters, such as that the terms have been already rejected by the client.

Where the compromise does not reflect the party’s intentions due to a misunderstanding, the court may permit the withdrawal of consent.  If there is no meeting of minds, there may be no valid consent.  Consent may not later be withdrawn on the basis that a good ground of defence is later discovered.

Where a compromise or order is made for the benefit of an infant or person under a disability, it must be sanctioned by the court, as being for the benefit of the client.

Relationship with Solicitors

A solicitor is not liable to his client for the neglect or want of attention of counsel whom he instructs.  He is not liable for counsel’s errors in the scope of matters usually entrusted to counsel, such as the sufficiency of the evidence and other matters within the scope of counsel’s expertise.  The solicitor may be negligent in not briefing counsel properly with respect to material facts of which he is aware.

Where the matter is such that the law would presume him to have knowledge of it, he cannot relieve himself of responsibility, by consulting counsel.

A solicitor may be justified in acting on counsel’s advice against his client’s wishes, where counsel advice is that it is in his client’s interest.

The matter of calling or not calling witnesses at trial is primarily one for counsel.  If counsel does not call certain witnesses, the solicitor will not be liable for negligence.

The drafting of pleadings is within the counsel’s area and the solicitor is not liable for negligence in drafting on the part of counsel.  Where there is no ordinary want of care on the part of the solicitor, any action on the advice of counsel, he will not generally be negligence.

Acting on Barrister’s Advice

A plaintiff is not immunised from a claim for malicious or fraudulent proceedings where he acts under counsel’s advice unless the facts were fairly stated to counsel and advice was bona fide given and properly followed.

A recommendation to accept or not to accept title will not immunise the solicitor for costs in the event that the court takes a different view on a vendor and purchaser summons.

Where persons undertake actions on the advice of counsel, they may nonetheless be liable for negligence or breach of duty if the advice turns out to be erroneous.  The advice of counsel does not immunise trustees in relation to bringing legal actions although it may assist in demonstrating that they have exercised their powers properly.

Immunity

Traditionally, a barrister was not liable for negligence for things done in conduct of this duty.  He was required to honestly discharge his duty to the best of his judgment.

Traditionally if a barrister accepted a brief and received payment, but did not attend the trial, no action could be taken to recover fees or damages for non-attendance.  The judicial immunity has been reversed by courts in England and Wales and Irish law is likely to follow this approach.

Confidence and Conflict

The employment of counsel places him in a position of confidence.  He must keep information received as counsel confidential.  The duty continues after the relationship of counsel and client ceases.

Courts will prevent counsel from disclosing secrets, taking advantage of secret information or taking advantage of anything learned regarding the client’s business to the detriment of the client.  Counsel stands as a fiduciary in relation to a client. A transfer of assets may be set aside on the basis of undue influence.

Counsel ought not to appear if two clients’ interests’ conflict.  He ought not to accept briefs against a party in cases where he would be embarrassed in the discharge of his duty by reason of confidence rested in him by another party.

Privilege

Communications between client, solicitor and barrister in a professional capacity or for obtaining legal advice or privilege from disclosure in court proceedings, whether by way of documentary disclosure or on examination of witnesses.

This privilege is not confined to communications in the course of, or in anticipation of litigation.  It extends to all professional communications of a confidential character for the purpose of legal advice.

The communications must be professional.  They must be confidential in character.  They must not be for the purpose of fraud or crime.

Pleadings and counsel’s endorsements are public documents but not notes of remarks and variations.  Drafts of pleadings are privileged.  The fact of the retainer of counsel is not privileged.

The privilege is the client’s privilege and not that of counsel or solicitor.  It may be waived by the client.  However, it enures for the benefit of successors.

Papers delivered to counsel are the property of the client and counsel has no right to retain them without the client’s consent.  Confidentiality is waived when documents are read in open court, but not before private tribunals.