1Overriding duty to the court may conflict with duty to client if not there is

1overriding duty to the court may conflict with duty

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- 1.Overriding duty to the court may conflict with duty to client( if not, there is a likelihood that barrister engage in defensive practice for the interest of the client) May mislead the court to win the case - 2. Cab-rank rule( necessary to have barristers’ immunity to protect them) Otherwise may meet some nasty client who threaten to sue if cannot win the case - 3. Possibility of re-litigation and over-litigation ( a client who lost the case -> appeal to upper court but not initiating to sue their barristers, if so, the client had to prove in what way the barristers’ reasoning was wrong or if the barrister did not argue in this way then the he would win the case-> but the case is not appealed so the result could not be reversed) Position in UK: Arthur JS Hall & Co (a firm) v Simons [2002]1 AC 615 - Abolished immunity from suit for alleged negligence of barristers and solicitor advocates in the conduct of civil proceedings - Reasons against barrister’s immunity: Principle of equal treatment ( doctor and other professions) Independent principles and powers of the court adequate to prevent collateral attacks, e.g. strike out for abuse of process of the court ( the court is able to stalk and screen out some hopeless cases,
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or cases that are nuisance to barristers due to particular power of the court, the court can dismiss a case without prospect of success -> enough)->wont open the floodgate of litigation Maintenance of high standard of the bar (by exposing negligence and incompetence->prompt improvement-> improve general public’s competence in the legal profession) If the client suffered in a loss, they should have a right to remedy Position in Australia: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 - Confirmed the existence of barrister’s immunity - Need for certainty and finality of decision c) Regulating Legal Profession - The High Court traditionally had an inherent power to discipline barristers and solicitors Barristers Solicitors Hong Kong Bar Association - An unincorporated professional body set up in 1949. - Prescribes rules governing professional conduct, discipline and etiquette. - The Bar Council, headed by the Chairman of the Bar Association, is the executive committee of the Association. - Traditionally the Bar Association appears to be more outspoken on constitutional and rule of law issues. (no close business) Barrister Disciplinary Tribunal Panel consist of SC, JC, foreign lawyers, lay persons appointed by CJ( s34.1 Legal Practitioners ordinance ) Appeal from any decision of tribunal is to CA - Power to: - Censure barristers, suspend their practising law for a specific period, order their names struck off the roll of barristers, award to the complainant an amount not exceeding the sums paid to the offending barrister - Impose penalties <$500000 Re Grey( HA) [1892] 2 QB 440, 443 - The court has a punitive and disciplinary jurisdiction over solicitors for the purpose of enforcing honorable conduct The Law Society of HK( professional body for solicitors) -
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