Fearless Advocacy and Bar Rule 60

By Keim, Stephen | University of Queensland Law Journal, December 2009 | Go to article overview

Fearless Advocacy and Bar Rule 60


Keim, Stephen, University of Queensland Law Journal


I Introduction

It is interesting being part of an academic discussion of events that bear one's name. I do think, however, that the decision by the stand-in Legal Services Commissioner concerning the complaints made against me raises some interesting academic points. I will touch on two of those, but do not intend to do anything other than raise issues for consideration. In particular, the references below to APLA Ltd v Legal Services Commissioner (NSW) (1) (the APLA case) are not meant to be a scholarly analysis of the ratio of that case.

II Operating Rule 60 in Context

The Legal Profession (Barristers) Rule 2007 (Qld) states that Rule 60 is to be read in the context of its preamble. The rules which make up the preamble speak, inter alia, of "fearless advocacy". (2)

A particular piece of reading down (as envisaged by the preamble) was argued for in the submission made by my legal representatives on my behalf. It was argued that Rule 60 should not be read as a straitjacket where the circumstances on which its application is based are not operable. The argument was then put in very specific terms. My solicitors said: (3)

   In particular where the circumstances fairly show that the
   prosecution in a criminal case is not acting with the restraint
   that might be fairly expected by itself conducting a campaign of
   leaked, prejudicial and inaccurate information, rule 60 should not
   be seen to prohibit a defence barrister from publication, where the
   only action in question is to release accurate factual information
   constituting evidence without comment or embellishment to correct
   the distortion. If rule 60 is properly to be viewed as prohibiting
   that kind of publication, it should be read down and a literal
   contravention of its terms in that context should not be viewed as
   unprofessional misconduct.

The proposition could not have been put more narrowly and more specifically than it was. Clearly, it was only to arise in circumstances very similar to those with which I was faced.

There is a touch of straw-casing in the response of the Bar Association and the Legal Services Commissioner in their rejection of that argument. They respond to a proposition much broader than that put on my behalf and reject it.

The report of the Bar Association put the argument as follows: (4)

   As the argument would go, once an opponent (which may be a lay
   opponent) engages in something which the barrister contends departs
   from proper observance of rule 60 (although rule 60 does not speak
   about that person which is another unwarranted assumption) the
   barrister is not only freed of the shackles of rule 60 but,
   implicitly, is free to engage in wholesale out of court responses
   and publications. Such conduct would be the antithesis of the rule.

The LSC findings took their lead from the Bar's analysis. After correctly paraphrasing the argument put on my behalf, the LSC goes off somewhere else. The letter to my instructing solicitors stated: (5)

   In its report, the BAQ referred to the 'mutuality observance'
   submission and rejected it. I agree entirely. The acceptance of the
   argument would defeat the purpose entirely. As your client is an
   Officer of the Court, I do not consider it appropriate that
   practitioners pick and choose which rules (or laws) they will
   follow. I do not find much sympathy with the argument that the
   conduct of an opponent permits a practitioner to breach the rules.

The findings raise many questions. My experience; the common law developed in respect of discipline of practitioners; and the Legal Profession Act 2007 (Qld) (6) all indicate that what is appropriate conduct cannot be corralled by rules like Rule 60, especially, when they are construed strictly without a feel for context. The result in my case is consistent with that proposition. …

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