The Role of Junior Counsel When Working with Senior Counsel

Transcription

1 The Role of Junior Counsel When Working with Senior Counsel M J Slattery QC June 1997, November 2001 Updated by D C Price, April 2010 A GENERAL 1 The purpose of this paper is to consider the tasks junior counsel is or may be expected to carry out when briefed with a leader. 2 The role of junior counsel has, historically, been identified by reference to the institution of senior counsel and, in particular, to the limitations that have been placed on the work that senior counsel have been permitted to perform. 1 For example, the NSW Bar Rules have previously prohibited senior counsel from drafting pleadings or other documents necessary for the conduct of contentious proceedings. 2 3 The limitations formerly imposed on senior counsel by the Bar Rules and/or rules of etiquette that prohibited or limited the types of work that senior counsel could perform have been abolished. As such, it is not possible to specify a set of tasks that junior counsel must perform when briefed with a leader. 4 Instead, what is now required of junior counsel in any given matter will depend on the particular circumstances that matter. Factors such as the nature of the brief, the number of counsel retained, the style and characteristics of the leader, the experience of the junior, the resources and views of the instructing solicitor and the instructions of the client will all contribute to determining the tasks that the junior has to perform in a given case. 5 There are two matters that should be borne in mind by junior counsel when briefed with a leader. They are: (1) the primary function of the junior is to assist the leader; and 1 2 Disney et al, Lawyers, Law Book Company, 1986, p 123. NSW Bar Rules, r 61 implemented 12 July The New South Wales Bar Association - Professional Development Department Page 1 of 6

2 Assistance (2) the briefing of a leader does not excuse the junior from complying with his or her own duties and obligations. 6 The form of the assistance that a junior provides to the leader in any given matter is, again, dependent upon the circumstances of the particular matter. 7 A junior can, however, promote the level of assistance he or she can offer to a leader by being: (a) (b) (c) (d) pro-active take responsibility for initiating communications, particularly if you are unsure of what is expected of you; realistic keep your offers of assistance within your capabilities, experience and capacity; timely, responsive and available teams ordinarily function far more efficiently and effectively when all involved are kept informed of the progress of the matter; loyal maintain confidences and don t seek to advance yourself at the expense of your leader. Duties 8 The briefing of a leader does not diminish the role of junior counsel and nor does it excuse junior counsel from complying with his or her duties and responsibilities to the Court, the client and the opponent. In Yates Property Corporation Pty Limited v Boland (1999) 85 FCR 84, the Full Court of the Federal Court of Australia said, at 111: But when a case is a difficult or complex one or when it involves a substantial sum of money, the client or the solicitor will form the view that it requires the attention of two counsel and then leading counsel is retained. That does not mean that the role of junior counsel is diminished. On the contrary, as anyone who has practised as leading counsel will know, senior counsel places great reliance on junior counsel for all aspects of the preparation of a case for trial. It was quite wrong of junior counsel in those circumstances to act on the The New South Wales Bar Association - Professional Development Department Page 2 of 6

3 assumption that he had no responsibility for any aspect of the advice and decision-making involved in bringing such a large case to trial. 3 9 Aside from the necessity of complying with his or her own legal and ethical obligations, the independence of mind of a junior can also be a valuable tool in ensuring that points are not missed and/or contrary arguments are addressed. B COMMONLY ENCOUNTERED SITUATIONS 10 This section deals with commonly occurring situations and identifies tasks that are often carried out by junior counsel. 11 Conferences 11.1 Speak to the solicitor and senior counsel prior to the conference to ascertain what the solicitor/client expects from the conference; 11.2 Offer to prepare an agenda; 11.3 Know the brief (or at least the relevant part of it) before the conference; 11.4 Prepare a chronology of events and offer it to senior counsel; 11.5 Endeavour to speak with your leader prior to the conference to ascertain the extent (if any) of any difference between the senior s and junior s views and plan the presentation of the differences; 11.6 Bring relevant parts of the brief and any other materials that may be relevant; 11.7 Be prepared to expound your views on the decision to be made in conference; 11.8 Express dissenting views with diplomacy. 3 The decision of the Full Court of the Federal Court was overturned on other grounds by the High Court in Boland v Yates Property Corporation Pty Limited (1999) 167 ALR 575). The issue quoted, however, was not affected. See also Swanton and McDonald Professional Negligence (2000) 74 ALJ 135 at 139. The New South Wales Bar Association - Professional Development Department Page 3 of 6

4 12 Preparing advices 12.1 Confer early with your leader to divide the task according to the specialties of each counsel; 12.2 Prepare a chronology, and a list of authorities/reference materials and compile the relevant portions into a bundle for discussion and/or subsequent use; 12.3 Prepare the draft advice for settling by the senior Proof read! 13 Preparation of a case 13.1 It commonly falls to junior counsel to prepare the first draft of every document necessary for use in the proceedings including pleadings, chronologies, witness statements, correspondence, motions, interrogatories, outlines of submissions and lists of authorities; 13.2 Organise all your paperwork and, if necessary, do the same for senior counsel; 13.3 Keep a task sheet of all work required to be done and the time by which each of item of work has to be completed; 13.4 Assume a semi-permanent role as devil s advocate to help maintain overall objectivity in preparation; 13.6 Ensure compliance with any orders made for hearing as well as any requirements imposed by procedural rules and/or practice notes. Many courts, and in particular appellate courts, have strict requirements concerning the provision of: (a) (b) (c) written submissions; lists of authorities; tender bundles; The New South Wales Bar Association - Professional Development Department Page 4 of 6

5 (d) (d) statements of agreed facts and issues; and objections to evidence Proof read! 14 Conducting a hearing 14.1 The size of the legal team present in court is matter that warrants consideration on occasions such as when a jury is present or the opponent is a self-represented litigant. Accordingly, offer your presence or absence in the courtroom as your leader requires; 14.2 Keep notes of evidence and argument and, in particular, potential replies to evidence/submissions; 14.3 Check off issues to be covered during cross-examination/submission by senior counsel; 14.4 Maintain a list of exhibit and a list of MFI s; 14.5 Maintain a list of requests/questions from the judge; 14.6 If junior counsel is to undertake the cross-examination of minor witnesses, it should be borne in mind that the Court will only permit cross-examination of a witness by more than one counsel in special circumstances: Phillips v Phillips [1966] 1 NSWR 49; GPI Leisure Corp Limited v Herdsman Investments Pty Limited Pty Limited (No 3) (1990) 20 NSWLR 15. Accordingly, senior counsel cannot intervene as readily if the crossexamination strikes difficulties, as may happen in leading evidence in chief: Chippendale v Masson (1815) 4 Camp 174; 171 ER Minimise interruptions and take and filter requests from the solicitor. Communicate by written note; 14.8 Have spare copies of documents to hand to senior counsel that may be required; 14.9 Don t disappear without explanation! The New South Wales Bar Association - Professional Development Department Page 5 of 6

6 14.10 Offer to arrange for trolleys to be taken to/retrieved from Court; Accompany your leader to and from Court; and Be prepared to act as a buffer with the solicitor and the client if required. 15 After a hearing 15.1 Prepare a list of task that need to be completed such as: (a) (b) answering questions from the Bench; further drafting or research Prepare an index to the transcript for the day. C CONCLUSION 16 Apart from the warning that being briefed with a leader does not excuse a junior from complying with his or her own legal and ethical obligations, the matters set out in this paper are no more than guidelines. You should abandon any one of them rather than do anything that you do not feel is appropriate for your relationship with particular senior counsel. The New South Wales Bar Association - Professional Development Department Page 6 of 6