DIRECT BRIEF GUIDE MAGISTRATES COURT

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1 DIRECT BRIEF GUIDE MAGISTRATES COURT INTRODUCTION This guide has been written by QPILCH to assist barristers who are prepared to accept a direct brief on a pro bono basis for a client who does not have, and cannot afford to engage, a solicitor in a Magistrates Court civil proceeding. However, the template costs agreement permits the barrister to claim their fees from the other unsuccessful party where a costs award is made in favour of the client. Barristers should be aware of the potential risks in accepting a direct brief. The presence of an instructing solicitor has many advantages, not least of which involves corroboration of client instructions, particularly in the event of a settlement. For example, a solicitor can note and corroborate the client s instructions. In the absence of a witness, barristers are advised to ensure that a client s instructions are clearly documented and signed by the client. This guide outlines the circumstances in which a barrister can accept a direct brief pursuant to the 2011 Barristers Rule and Magistrates Court Practice Direction No 7 of 2006 (further amended). It also outlines QPILCH s requirements if you accept a direct brief referral from QPILCH. CHECK LIST FOR ACCEPTING A DIRECT BRIEF Have you read Rules 15 and 17 of the 2011 Barristers Rule? [page 2] Have you considered paragraph 2 of Practice Direction No. 7 of 2006 (further amended), which sets out what is expected of a barrister who accepts a direct access brief? [page 3] Have you obtained your client s signed acknowledgement in accordance with rule 24B(b) of the 2011 Barristers Rule and paragraph 3 of Practice Direction No 7 of 2006? [pages 3 and 4 and attachment B] Have you received from your client the signed costs agreement? [page 4 and attachment B] If you are within the first six months of pupillage, have you obtained written approval from your pupil master (junior or senior) and submitted it to the Chief Executive, BAQ, prior to acceptance of the brief? [page 2 and attachment A] Have you filed any necessary documentation in the Magistrates Court Registry and delivered a copy of the documentation to the Chief Executive, BAQ? [page 4] Have you considered the rules about refusing a direct brief in accordance with rules 95, 99 and 100 of the 2011 Barristers Rule? [pages 2-3] The templates attached to this guide can be downloaded from the QPILCH website

2 PRIOR TO ACCEPTING A DIRECT ACCESS BRIEF 2 Before deciding to accept a direct brief it is important to read rules 15 and 17 of the 2011 Barristers Rule. Rule 15 outlines the special work of barristers, as opposed to the work of other Australian Legal practitioners: 15. Barristers work consists of: (a) appearing as an advocate; (b) preparing to appear as an advocate; (c) negotiating for a client with an opponent to compromise a case; (d) representing a client in a mediation or arbitration or other method of alternative dispute resolution; (e) giving legal advice; (f) preparing or advising on documents to be used by a client or by others in relation to the client s affairs or other affairs; (g) carrying out work properly incidental to the kinds of work referred to in (a) (f); and (h) such other work as is from time to time commonly carried out by barristers. Rule 17 outlines the work that barristers must not do: 17. A barrister must not, subject to Rules 18 and 19: (a) act as a person s general agent or attorney in that person s business or dealings with others; (b) conduct correspondence in the barrister s name on behalf of any person otherwise than with the opponent; (c) place herself or himself at risk of becoming a witness, by investigating facts for the purposes of appearing as an advocate or giving legal advice, otherwise than by - (i) conferring with the client, the instructing solicitor, prospective witnesses or experts; (ii) examining documents provided by the instructing solicitor or the client, as the case may be, or produced to the court; (iii) viewing a place or things by arrangement with the instructing solicitor or the client; or (iv) library research; (d) act as a person s only representative in dealings with any court, otherwise than when actually appearing as an advocate; (e) be the address for service of any document or accept service of any document; (f) serve any process of any court; (g) conduct the conveyance of any property for any other person; (h) administer any trust estate or fund for any other person; (i) obtain probate or letters of administration for any other person; (j) incorporate companies or provide shelf companies for any other person; (k) prepare or lodge returns for any other person, unless the barrister is registered or accredited to do so under the applicable taxation legislation; or (l) hold, invest or disburse any fund for any other person. PUPIL BARRISTERS PROHIBITED FROM ACCEPTING DIRECT BRIEFS By s3.2.2 of the Administration Rules 2010, in the first six months of pupillage a pupil is prohibited from accepting a direct access brief unless they obtain written approval of the pupil s senior or junior master and submit the written approval to the Chief Executive prior to acceptance of the brief. Attachment A is a template approval letter.

3 3 REFUSING A BRIEF Following the cab-rank principle as outlined in rule 21 of the 2011 Barristers Rule, a barrister generally must accept a brief provided by a solicitor. However, pursuant to rules 24A and 99 if a brief is not provided by a solicitor then it may be refused. Rules set out the circumstances where a brief must be refused. Importantly, rule 95 provides: A barrister must refuse to accept or retain a brief or instructions to appear before a court if: k) there are reasonable grounds for the barrister to believe that the failure of the client to retain an instructing solicitor would, as a real possibility, seriously prejudice the barrister s ability to advance and protect the client s interests in accordance with the law including these Rules. ACCEPTING A BRIEF If you choose to accept a direct brief you must have regard to paragraph 2 of Practice Direction No 7 of 2006 (further amended) as set out below: Paragraph 2 of Practice Direction No 7 of 2006 provides: 2. It is expected that a barrister who accepts a direct access brief will: a) obtain a detailed understanding of the matter, including the client s potential case; b) give consideration to the evidence likely to be required to be called in the case; c) ascertain the nature and volume of documentary evidence likely to be relevant in the case; d) ascertain the identity and number of potential witnesses; e) give detailed consideration to the manner in which the evidence will be collected and prepared for presentation to the Court; f) give careful consideration to the likely steps to be taken in the matter, including the prospects of interlocutory proceedings; g) consider whether, having regard to the resources available to the barrister, including the barrister s experience, general competence, and familiarity with the areas of practice likely to be relevant to the matter, the barrister is satisfied that: (i) the barrister will be able properly to prepare the case for hearing bearing in mind the requirements of ss.15 and 17 of the 2011 Barristers Rules (see above), and (ii) the barrister will be able to take all appropriate action on the client s behalf, in a timely fashion, and in accordance with any rules of practice and procedure, practice directions, or other likely orders or directions made in respect of the conduct of the matter; h) refuse to accept the direct access brief unless so satisfied. OBTAINING A CLIENT S WRITTEN ACKNOWLEDGEMENT Pursuant to rule 24B of the 2011 Barristers Rule, a barrister who proposes to accept instructions directly from a person who is not a solicitor must: (a) inform the prospective client in writing of: (i) the effect of Rules 15 and 17; (ii) the fact that circumstances may require the client to retain an instructing solicitor at short notice, and possibly during the performance of the work; (iii) any other disadvantage which the barrister believes on reasonable grounds may, as a real possibility, be suffered by the client if the client does not retain an instructing solicitor; (iv) the relative capacity of the barrister in performing barristers work to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructing solicitor to supply them; (v) a fair description of the advocacy experience of the barrister; and

4 4 (b) obtain a written acknowledgement, signed by the prospective client, that he or she has been informed of the matters in (a) above and also complies with Magistrates Court Practice Direction 7 (further amended) of Magistrates Court Practice Direction No 7 of 2006 (further amended) requires that when accepting a direct brief the Barrister must obtain written acknowledgment, signed by the prospective client, in the form outlined in rule 24B, and with the following inclusions: acknowledgement by the client that he or she has been informed of the effect of rules 15 and 17; and certification by the barrister: i. that he or she has complied with paragraph 2 of Practice Direction No 7 of 2006; ii. that he or she informed the prospective client that any complaint of professional misconduct, unsatisfactory professional conduct, or other conduct to which Chapter 3 or 4 of the Legal Profession Act 2007 applies, may be made to the Legal Services Commissioner, Level 25, 307 Queen Street, Brisbane, Q, Paragraph 3(c) of Practice Direction No 7 of 2006 (further amended) provides: 3. A barrister who accepts a direct access brief must: c) at the time at which any Court proceedings are instituted (or if the barrister is retained subsequent to the institution of proceedings, at the time the next document is filed in Court, and in any event before the barrister appears in Court in relation to the matter), cause: (i) the document [the written acknowledgement and certification] to be filed in the Registry, and (ii) a copy of the document to be delivered to the Chief Executive of the Bar Association Queensland. A template for this written acknowledgement and certification is appended to Attachment B, the template costs agreement (see below). RETURNING A BRIEF Rule 99 provides that a barrister may refuse or return a brief to appear before a court: (g) if the barrister s advice as to the preparation or conduct of the case, not including its compromise, has been rejected or ignored by the instructing solicitor or the client, as the case may be; Rule 100 provides that a barrister may return a brief accepted under a speculative fee agreement if the barrister considers on reasonable grounds that the client has unreasonably rejected a reasonable offer to compromise contrary to the barrister s advice. COSTS AGREEMENT The standard costs agreement has been written in accordance with the requirements of Part 3.4 of the Legal Profession Act 2007 (Qld) (LPA). The LPA requires law practises, including sole legal practitioners (which includes a barrister pursuant to Schedule 2 of the LPA), to make disclosure to clients regarding legal costs (see s308 of the LPA). Attachment B is a template pro bono/conditional cost agreement, including a written acknowledgement and certification required by the 2011 Barristers Rule and Magistrates Court Practice Direction 7 of 2006 (further amended). A conditional costs agreement provides that payment of some or all of the legal costs are conditional on the successful outcome of the matter to which the costs relate. The standard costs agreement has been drafted in accordance with the conditional costs agreement requirements set out in s323 of the LPA.

5 5 REPORTING BACK Attachment C is QPILCH s Standard Referral Guidelines for barristers accepting a direct brief and Attachment D is a Matter Closure Report. The Matter Closure Report is critical to QPILCH as it allows QPILCH to monitor the progress of the matter, assists in gathering outcome data, enables quantification and reporting on the pro bono work being undertaken by members and facilitates closure of our file. Please complete and return a Matter Closure Report at the conclusion of your involvement in the matter. USEFUL LINKS Practice Directions Magistrates Court: 7of2006.pdf District Court: Supreme Court: 2of2006.pdf Administration Rules Barristers Rule

6 Attachment A Dear RE: APPROVAL TO ACCEPT A DIRECT ACCESS BRIEF In accordance with Rule of the Administration Rules 2010, I write to you as my Master to seek your approval for me to accept a Direct Access Brief in the matter of [insert name] which will be heard on [insert] in the [insert name of Court or Tribunal]. The matter involves [insert brief details of the nature of the matter]. I indicate that I will comply with the requirements of rule 24B of the 2011 Barristers Rule and any Practice Direction issued by the Court in respect of the acceptance of a Direct Access Brief. Can you please advise me if you are happy for me to proceed to act for [insert client name] on the basis outlined above. You should only approve my acceptance of a Direct Access Brief if you are satisfied that I have sufficient experience to handle the matter on a Direct Brief basis. Once I have received your formal approval or otherwise, I will advise the Chief Executive of the Bar Association accordingly. Yours faithfully,

7 7 Attachment B [BARRISTER S LETTERHEAD] [DATE] [ADDRESSEE] Dear [NAME] Re: [MATTER BRIEFED] I have offered to provide you with pro bono assistance in the above matter. This letter sets out my understanding of what my role will be, how I will charge you (if at all) and what will happen next. You are entitled to negotiate a costs agreement with me. This letter sets out the basis upon which I am prepared to accept your brief, and if it is accepted by you, it will become the costs agreement between us. You are entitled to seek independent legal advice before entering into this costs agreement. [Sections 308(1)(b)(i), 322(2) and 323(3)(d)] Relevant law All references to legislation in this document are to the Legal Profession Act 2007 (LPA) unless otherwise stated. Section 308 requires the disclosure by a barrister to a client (other than a law practice) of certain information relating to costs, including how the barrister will charge fees and costs to the client. A costs agreement may be enforced in a court (s 326). The law of Queensland applies to legal costs in relation to this matter (s 308(1)(k)). The meaning of terms used in this agreement (when used in the text, these terms are highlighted) Costs agreement a written agreement between practitioner and client as contemplated by section 322. This agreement specifies how fees and costs will be calculated. Conditional costs agreement a costs agreement pursuant to which payment of costs is conditional on the successful outcome of the matter to which the costs relate. Indemnity costs all reasonable costs, including professional fees and disbursements, which are incurred by a party in undertaking proceedings. Successful outcome the circumstances that will constitute a successful outcome to this matter are: (a) You receive a benefit or financial compensation in respect of the matter, including an order or agreement for payment of your professional costs; and/or (b) You receive an offer of settlement (including costs) which is in my reasonable opinion a fair and reasonable resolution of the matter in the circumstances whether or not you accept it. [Section 323(3)(a)] 1 My role 1.1 I will be acting for you [OR INSERT NAMES IF MORE THAN ONE CLIENT] and you [INSERT IF MORE THAN ONE] will give me your instructions.

8 8 1.2 The work I am briefed to do is [INSERT DESCRIPTION OF MATTER, (INCLUDING NAMES OF PARTIES AND PROPERTY IF ANY) AND WHAT WORK WILL BE DONE. IN PARTICULAR, SPECIFY SCOPE OF ATTENDANCE I.E. ASSISTANCE WITH A DISCRETE TASK OR ONGOING ASSISTANCE]. 1.3 You may request me to perform additional work outside the scope set out above. If you do, it is in my discretion as to whether that additional work will be performed on the basis of this costs agreement, or on the basis of a new costs agreement to be entered into between us. 1.4 Any Rules of the Bar Association of Queensland for the time being in force regulating the conduct and practice of the members of the Bar shall apply to this Agreement. 1.5 Rules 15 and 17 of the 2011 Barristers Rule set out what work a Barrister may and must not do. Rule 24B requires me to inform you of various matters, including the effect of rules 15 and 17, and to obtain a written acknowledgement that you have been informed of the matters in rule 24B. Enclosed with this letter is a document entitled Direct Access Brief Acknowledgement and Certification that I require you to read, sign and return to me before I am able to accept your instructions. 1.6 Pursuant to rule 95(k) of the 2011 Barristers Rule, I must refuse to accept or retain a brief or instructions to appear before a court if there are reasonable grounds for me to believe that the absence of an instructing solicitor would, as a real possibility, seriously prejudice my ability to advance and protect your interests in accordance with the law including the 2011 Barristers Rule. 1.7 I may refuse or return this brief if: (a) My advice as to the preparation or conduct of the case has been rejected or ignored by you; (b) In accordance with the terms of this costs agreement; or (c) I consider on reasonable grounds that you have unreasonably rejected a reasonable offer to compromise contrary to my advice. [Rule 99 and 100] 1.8 Notwithstanding that instructions or a brief have been delivered to me, I shall not be deemed to have accepted those instructions or brief before having a reasonable opportunity to peruse them and decide whether they are appropriate for direct access work. I shall not be deemed to have accepted your instructions by sending you this letter. 1.9 Without prejudice to any other right that I may have in accordance with any rules of the Bar Association of Queensland to decline instructions or a brief, I shall be entitled at my complete discretion, which shall be exercised in your interest, at any time to require, as a condition of continuing to act in your matter that a solicitor shall take over the instructions or that the services of a solicitor shall otherwise be retained to assist in the future conduct of the matter. In such an event you shall have the option of withdrawing your instructions or brief to me or of complying with my request. 2 My fees 2.1 I will be acting for you on a pro bono basis and so will not charge you any professional fees. [OR]

9 9 I will be acting for you on a pro bono basis and so will only charge you professional fees if there is a successful outcome to this matter and only to the extent that you can obtain my professional fees from the other party/ies. 2.2 How my professional fees are calculated [INSERT BASIS OF CALCULATION OF FEES] [Section 308(1)(a)] 2.3 On the assumption that a successful outcome is reached, I estimate that the total amount of my fees will be $[*] plus GST of $[*], giving a total of [*]. This estimate is based on [INSERT AN EXPLANATION OF HOW FEE WAS CALCULATED] [Section 308(1)(c)] [OR] It is not reasonably practicable to estimate the total amount of fees likely to be payable for the work in the event that a successful outcome is reached. A likely range of estimates is from $[*] to $[*] (including GST). These estimates are based on [INSERT EXPLANATION OF BASIS OF ESTIMATE E.G. MY HOURLY RATES, MY DAILY RATES, MY EXPECTATION THAT A RANGE OF [INSERT] DAYS OF PREPARATION MAY BE REQUIRED, AND MY EXPECTATION THAT THE HEARING MAY TAKE [INSERT RANGE] DAYS]. The major variables which will affect the calculation of those costs are: (a) the amount of preparation required, including matters such as: (i) the extent of documentary disclosure; (ii) the length of time required to prepare and confer with lay and expert witnesses; (b) the length of the hearing, which will be affected by matters such as: (i) whether the issues in dispute are narrowed or expanded at the hearing; (ii) the time taken to examine and cross-examine witnesses; (c) the time required to prepare and finalise written submissions for the Judge or other adjudicator. [INSERT ANY OTHER RELEVANT VARIABLES AFFECTING CALCULATION OF ESTIMATE] [Section 308(1)(c)] 2.4 This is only an estimate and it is not binding on me. It is not a quote. The actual fees will vary depending on the circumstances. 2.5 If the amount of costs you are entitled to receive in relation to my professional fees following a successful outcome (or would be entitled to receive if you had accepted an offer of settlement constituting a successful outcome) is less than my professional fees, I will not ask you to pay the difference between the amount recovered in relation to my professional fees (or the amount which would have been recovered in relation to my professional fees had you accepted that settlement offer) and my fees. 2.6 Any costs recovered from any other parties which directly relate to my fees and your right to recover costs relating to my fees will be subject to a trust in my favour. 2.7 I will not incur any disbursements (which are non-professional costs, for example, photocopying charges, filing or lodgement fees, search fees, travel costs etc) on your behalf. If these costs need to be incurred, I will ask you to be responsible for the relevant activity (e.g. photocopying, filing or lodging a document, conducting searches, arranging travel) and to make payment for that activity directly.

10 If I charge you for professional fees, and GST is payable in relation to the services I provide to you, an amount of 10% will be added to those fees. 3 Award of Costs 3.1 In litigation matters, some courts and tribunals (but not all) may order the unsuccessful party to pay the legal costs of the successful party. However, an order by a court or tribunal for the payment of costs in your favour will not necessarily cover the whole of the professional costs incurred by you. [Section 308(4)(a)] 3.2 If proceedings are commenced and you are unsuccessful, I estimate that you may be ordered to pay between $[*] and $[*] (including GST) towards the costs of the other party/ies. You will be personally liable for the payment of these costs. [Section 308(1)(f)(ii)] 3.3 Conversely, if you are successful in your matter, you may be entitled to recover your costs or a portion of them from the other party/ies. I estimate that the other party/ies may be ordered to pay between $[*] and $[*] (including GST) towards your costs. [Section 308(1)(f)(i)] 3.4 Unfortunately, you are not entitled to recover from the other party/ies costs relating to time lost by you in preparing for and conducting your case. The costs you are entitled to recover are limited to your legal costs (which include my professional fees and the professional fees and disbursements of any legal firm engaged by you in this matter), reasonable disbursements (e.g. filing fees, search fees) and witness expenses. You will need to retain your receipts in relation to disbursements that you have paid and copies of cheques etc in relation to witness expenses in order to claim those disbursements from the other party/ies. 3.5 Courts generally award costs on the basis of court scales of costs, which are taskbased rather than time-based. This is known as the standard basis, and usually allows a successful party recovery of between approximately one third and one half of their actual costs. This is because the scale only allows recovery for the costs of tasks which would be performed in an ideal world, rather than the costs of tasks performed in connection with the circumstances of a particular case. As a consequence, an order by a court for the payment of costs in your favour will not necessarily cover the whole of your legal costs. Enclosed with this letter is a copy of the scale for [INSERT NAME OF RELEVANT COURT AND ATTACH COPY OF RELEVANT COURT SCALE(S) IF MATTER IS LITIGIOUS]. [Section 308(1)(a)] 3.6 The ranges outlined above estimate your recovery (or your exposure) on a standard basis. 3.7 In certain circumstances, such as a court finding that a party's claim had no legal basis to be brought, a court may be persuaded to order a party's costs be assessed on an indemnity basis. As a result, if your claim were wholly successful, and the circumstances of the claim were such that a court awarded indemnity costs, recovery might be as high as 90% of your actual costs. However, if your claim is wholly unsuccessful, and the circumstances of the claim were such that a court awarded indemnity costs to the other party/ies, you may have to pay an amount of approximately the same magnitude to the other party/ies for their costs. Again, these are estimates only and a different result is possible. 3.8 The amounts specified in paragraphs 3.2 and 3.3 above are only estimates and are not binding on me.

11 11 4 Bills 4.1 I will issue my bill to you within 30 days of completion of the matter, or the end of my involvement in the matter. If you wish to discuss the legal costs in my bill, please contact me. [Sections 308(1)(b)(ii) and 308(1)(h)] 4.2 The bill will clearly set out all items of work done for you and the amount charged for each item. 4.3 If I issue you with a lump sum bill, you may request me to provide an itemised bill within 30 days after receipt of a lump sum bill. [Section 308(1)(b)(iii)] 4.4 I will not charge you any interest on my bill. [Section 308(1)(e)] 5 Recovery of costs 5.1 Following a successful outcome, you agree to pursue the party/ies against whom the costs order is made, or with whom the settlement agreement is made, to enable the payment of my bill as soon as practicable. 5.2 If I am no longer instructed or briefed by you when a successful outcome is reached, you agree to notify me of the successful outcome reached. You authorise: (a) me to enquire with the opposing party/ies or the barrister and/or solicitor instructed by the opposing party/ies regarding the orders and/or agreement reached between you and the opposing party/ies and the payment of any costs by the opposing party/ies to you; and (b) the opposing party/ies or the barrister and/or solicitor instructed by the opposing party/ies to advise me of the terms of the orders and/or agreement reached between you and the opposing party/ies and the payment of any costs by the opposing party/ies to you. 5.3 You agree that I may provide a copy of this costs agreement to the opposing party/ies, or the barrister and/or solicitor instructed by the opposing party/ies as evidence of the above authorisation, and that the provision of a copy of this costs agreement will be sufficient evidence of the above authorisation for the barrister and/or solicitor instructed by the opposing party/ies to provide information regarding the orders and/or agreement reached between you and the opposing party/ies and the payment of any costs by the opposing party/ies to you. 5.4 I may seek an order from the Court that costs that are payable to you by opposing party/ies in relation to my fees are to be paid directly to me in discharge of the opposing party s/ies obligation to pay you. If I do so, you must consent to me obtaining that order, with your consent to be limited only by the amount of money due to me by you in respect of my fees. 6 Progress Reports 6.1 I will give you, on reasonable request, written reports on the progress of the matter and/or written reports on professional costs incurred to date (or since the last bill, if any). Please note, however, that I may charge you a reasonable fee for preparing written reports on the progress of the matter in the event a successful outcome is reached Sections 308(1)(g) and 317] 6.2 I will notify you of any substantial change to the matters set out above as soon as is reasonably practicable after I become aware of that change. [Sections 308(1)(b)(iv) and 315]

12 12 7 Your right to a review of costs 7.1 You may have the bill/s I issue to you assessed by a costs assessor in some circumstances. [Section 308(1)(i)(i) and Division 7] 7.2 Your application to have my bill/s assessed must be made within 12 months after: (a) The bill was given, or a request for payment of the bill was made to you; or (b) The costs were paid, if neither a bill was given nor a request for payment of the bill was made. [Section 308(1)(j)] 7.3 If you apply to have a costs assessor appointed in relation to my bill, you agree to pay the costs assessor's costs regardless of whether the assessment is favourable to you or not. 7.4 In the event of a dispute in relation to legal costs, in some circumstances you may apply to the Supreme Court or to the Queensland Civil and Administrative Tribunal to have this costs agreement set aside under section 328. [Section 308(1)(i)(ii)] 8 Immunity from liability 8.1 My immunity under common law from suit relating to work done in court, or work done out of court affecting the conduct of this matter in court, will apply to this retainer. 9 Accepting this agreement 9.1 This letter, the enclosed scale and Direct Access Brief Acknowledgement and Certification form the agreement between us. To enter into the agreement, you need to sign the enclosed duplicate letter where indicated and return it to me as soon as possible. [NOTE TO BARRISTER THIS COSTS AGREEMENT MUST BE ACCEPTED IN WRITING AND NOT BY CONDUCT IF IT IS A CONDITIONAL COSTS AGREEMENT (section 323(3)(c)(iii))] 9.2 You have been informed above of your right to seek independent legal advice before entering into this agreement with me. [Section 323(3)(d)] 10 Cooling off period 10.1 After you have signed and returned to me the enclosed duplicate letter, you have 5 clear business days during which you may terminate the agreement. In the event you terminate this agreement within 5 clear business days of accepting it, you will only be liable to me for my fees if: (a) there is a successful outcome; and (b) the fees relate to legal services performed for you before the termination, which services were performed: (i) (ii) on your instructions; and with your knowledge that the legal services would be performed before the end of 5 business days after you accepted this agreement. [Sections 323(3)(e) and 323(5)(a)] 11 What will happen next? 11.1 The next step is [INSERT DETAILS I require /I need you to ]

13 13 Yours sincerely [INSERT NAME OF BARRISTER] [INSERT NAME OF CLIENT] agrees with the above: Dated this day of 20. Signed

14 DIRECT ACCESS BRIEF ACKNOWLEDGEMENT AND CERTIFICATION To: [insert name of client] ( you ) From: [insert name of barrister] ( I ) The 2011 Barristers Rule was made pursuant to the Legal Profession Act 2007 (Qld). I am required to comply with the 2011 Barristers Rule. Barristers may perform only certain work. In particular, barristers may not perform the usual work of a solicitor. Rules 15 and 17 of the 2011 Barristers Rule set out what work barristers may do, and what barristers must not do. Those rules provide: 15. Barristers work consists of: (a) appearing as an advocate; (b) preparing to appear as an advocate; (c) negotiating for a client with an opponent to compromise a case; (d) representing a client in a mediation or arbitration or other method of alternative dispute resolution; (e) giving legal advice; (f) preparing or advising on documents to be used by a client or by others in relation to the client s affairs or other affairs; (g) carrying out work properly incidental to the kinds of work referred to in (a) (f); and (h) such other work as is from time to time commonly carried out by barristers. 17. A barrister must not, subject to Rules 18 and 19: (a) act as a person s general agent or attorney in that person s business or dealings with others; (b) conduct correspondence in the barrister s name on behalf of any person otherwise than with the opponent; (c) place herself or himself at risk of becoming a witness, by investigating facts for the purposes of appearing as an advocate or giving legal advice, otherwise than by - (i) conferring with the client, the instructing solicitor, prospective witnesses or experts; (ii) examining documents provided by the instructing solicitor or the client, as the case may be, or produced to the court; (iii) viewing a place or things by arrangement with the instructing solicitor or the client; or (iv) library research; (d) act as a person s only representative in dealings with any court, otherwise that when actually appearing as an advocate; (e) be the address for service of any document or accept service of any document; (f) serve any process of any court; (g) conduct the conveyance of any property for any other person; (h) administer any trust estate or fund for any other person; (i) obtain probate or letters of administration for any other person; (j) incorporate companies or provide shelf companies for any other person; (k) prepare or lodge returns for any other person, unless the barrister is registered or accredited to do so under the applicable taxation legislation; or (l) hold, invest or disburse any fund for any other person. Pursuant to rule 17, there are a number of activities usually performed by a solicitor in the conduct of a litigious matter that I am not able to perform. As a consequence, circumstances may require you to retain an instructing solicitor at short notice, and possibly during the case. I believe on reasonable grounds that there is a real possibility that you may suffer the following disadvantages if you do not retain an instructing solicitor:

15 15 If there is an urgent need to retain a solicitor at short notice, that solicitor will not already be familiar with your case; There may be work that you need to undertake as if you were your own solicitor. For instance, you may need to serve documents yourself, or accept service of documents yourself, or file documents in court, or conduct correspondence with the opponents under your own name, or investigate the facts of the case. Normally, these tasks would be performed by a solicitor. A barrister is not able to perform those tasks and these tasks would therefore have to be performed by you; On a practical level, not having retained an instructing solicitor may pose some difficulties. For instance, having a solicitor allows enquiries to be made during court proceedings. Sometimes, issues of law might arise during a court proceeding that need to be investigated, or a telephone call might need to be urgently made in relation to an issue that has arisen in court. As a barrister, I could not leave the bar table in court to conduct this research or make these enquiries, however, an instructing solicitor could fulfil that purpose. The absence of an instructing solicitor means that those enquiries could not be made during the court proceedings. [INSERT OTHER RELEVANT DISADVANTAGES AND EXAMPLES] I, in performing barristers work, am not able to provide you with the same service or facilities that would be able to be provided to you by a barrister together with an instructing solicitor. I am not able to provide you with the service or facilities of a solicitor. In the particular circumstances of this matter, I will not be able to [INSERT ANY CASE RELEVANT SPECIFIC SERVICES/FACILITIES THAT THE BARRISTER MAY NOT PROVIDE WHICH MIGHT USUALLY BE PROVIDED BY A SOLICITOR]. My advocacy experience involves [INSERT FAIR DESCRIPTION OF THE ADVOCACY EXPERIENCE OF THE BARRISTER]. Any complaint of professional misconduct, unsatisfactory professional conduct, or of other conduct to which Chapter 3 or 4 of the Legal Profession Act 2007 applies, may be made to the Legal Services Commissioner, located at Level 25, 307 Queen Street, Brisbane, Q, By providing you with this Acknowledgement and Certification, I have complied with paragraph 2 of Practice Direction [2006/07 for Magistrates Court; 2006/02 for District Court; 2006/02 for Supreme Court ]. Please sign this document where indicated below to acknowledge that you have been informed of the matters set out above..... [INSERT NAME OF CLIENT] Date: BARRISTER S CERTIFICATION I certify that I have complied with paragraph 2 of Practice Direction [2006/07 for Magistrates Court; 2006/02 for District Court; 2006/02 for Supreme Court] and that I have informed the prospective client that any complaint of professional misconduct, unsatisfactory professional conduct, or of other conduct to which Chapter 3 or 4 of the Legal Profession Act 2007 applies, may be made to the Legal Services Commissioner, located at Level 25, 307 Queen Street, Brisbane, Q, 4000.

16 [INSERT NAME OF BARRISTER] Date: At the time at which any Court proceedings are instituted (or if the barrister is retained subsequent to the institution of proceedings, at the time the next document is filed in Court, and in any event before the barrister appears in Court in relation to the matter), the barrister must cause: (i) (ii) this document to be filed in the Registry, and a copy of this document to be delivered to the Chief Executive of the Bar Association of Queensland.

17 Attachment C Queensland Public Interest Law Clearing House Incorporated STANDARD REFERRAL GUIDELINES FOR COUNSEL ACCEPTING A DIRECT BRIEF 1. QPILCH will ask the applicant to contact you to make an appointment. QPILCH is happy to arrange a meeting if you would prefer. 2. Our priority is to arrange pro bono representation by a law firm in the first instance to instruct counsel when necessary. We make referrals as a direct brief as a last resort or where matters are straight forward such as interlocutory steps or are being heard in a tribunal and are not complicated and costly. 3. QPILCH is not the client, nor is the applicant a client of QPILCH. 4. You must establish the usual client relationship. A pro forma barrister/client agreement has been provided in QPILCH s direct brief kit and can also be downloaded from our website at (located under Membership/Useful Documents and Forms). It should be adapted to reflect the circumstances of the particular case. 5. This client is referred on a pro bono basis. This means that you will not charge the client for your services. However, unless other arrangements are agreed with the client and if a costs order is made in their favour, you can claim your costs on a standard basis from the opposing party in accordance with clause 5 of the template costs agreement. 6. Please ensure that the applicant/client is aware of the cost implications (if any) of the matter, particularly where litigation is envisaged. 7. QPILCH may be able to provide support assistance such as collecting and collating information, undertaking research, or providing access to expert assistance within the limits of our available resources or further referral to a law firm. 8. Please ensure that you complete the attached Direct Brief Matter Closure Report form on completion of the matter by you. This allows us to monitor progress of the matter to ensure that our referral program is operating effectively, assists in gathering outcome data, enables us to quantify and report on the amount of pro bono work being undertaken by our members and facilitates closure of our file. QPILCH monitoring of matters is not as the agent of you, the client, or any other person. 9. All information and documentation provided to you as part of a referral is confidential. If for some reason you are unable to accept the referral, please return all material to QPILCH. 10. If a client s circumstances change, for example it becomes apparent that they can afford representation, their matter lacks legal merit or it is not in the public interest to continue it, subject to the terms of the client agreement, you are under no obligation to continue your pro bono assistance to the client.

18 Attachment D Queensland Public Interest Law Clearing House Incorporated MATTER CLOSURE REPORT IN DIRECT BRIEFS CLIENT S NAME:... DATE MATTER FINALISED:... DID YOU OBTAIN YOUR CLIENT S WRITTEN INSTRUCTIONS TO CONCEED OR SETTLE THE PROCEEDINGS? YES NO IF YES, PLEASE ATTACH A COPY. IF NO, WHY?... NAME OF BARRISTER:... AREA OF LAW:... APPROXIMATE NUMBER OF HOURS:... AMOUNT OF DISBURSEMENTS INCURRED BY YOU CLIENT : $... PRIMARY REASON FOR CLOSURE: INSUFFICIENT MERIT TO PROCEED CLIENT WITHDREW OR DID NOT RETURN COURT/TRIBUNAL DECISION NEGOTIATED SETTLEMENT ADVICE /ASSISTANCE PROVIDED OTHER BRIEFLY DESCRIBE OUTCOME(S) (do not include any terms of a confidential settlement): To be completed by QPILCH STEPS TAKEN TO OBTAIN AN INSTRUCTING SOLICITOR... REASONS WHY INSTRUCTING SOLICITOR NOT OBTAINED.... PLEASE RETURN TO: QPILCH: PO Box 3631, SOUTH BRISBANE BC QLD 4101 F: E: services@qpilch.org.au

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