Advocacy by ambush is against the rules

The Ethics Committee of the Victorian Bar publishes Ethics Bulletins on an as-required basis. Similar in format to the Practice Directions issued by the Magistrates’ Court of Victoria, these bulletins act as gentle reminders to barristers of the Bar Rules of Conduct, and clarification on ethical issues of legal practice.

One bulletin to be particularly mindful of is No 1 of 2005 – Unreported Judgments. It reminds practitioners of the need to comply with Rule 85 of the Rules of Conduct:

85. If a barrister intends to rely on an unreported decision then, before doing so, it should be brought to the attention of opposing counsel, and if necessary a copy supplied in sufficient time for proper consideration of it.

Dropping a copy of the case on the bar table in the middle of submissions doesn’t satisfy the letter or the spirit of Rule 85. Not only is a surprise attack likely to cause opposing counsel intense personal discomfort, it deprives the Court of the ability to hear properly prepared and reasoned submissions from the advocates on behalf of each of the parties.

Whilst most barristers are aware of this requirement in theory, it is less frequently observed in practice. Practitioners who fail to comply with this simple courtesy should be aware that they risk being held accountable for otherwise avoidable delays in court proceedings. Repeated breaches by the same practitioner might attract the ire of the Legal Services Commissioner.

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