NSW Solicitor Engage Another Barrister from the Same Firm?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

Philip74747

Member
29 November 2017
3
0
1
Hi,

My solicitor engaged a barrister who lost my case. I said I wasn't happy with the barrister's performance and wanted to appeal. My solicitor then engaged the services of another barrister, from the same firm as the original barrister, to provide advice on whether I should appeal. She advised against it.

With hindsight, I don't think it was ethical to ask a barrister from the same firm as her opinion may have been biased in support of her colleague. Do you have any opinion on this situation please?
 

Lennon

Well-Known Member
11 September 2014
270
36
719
Barristers (as opposed to solicitors) can't belong to "firms". They are all independent.

Do you mean that they are at the same chambers?
 

AllForHer

Well-Known Member
23 July 2014
3,664
684
2,894
And also, not being happy with your representation does not give you grounds to appeal, so sounds like the second barrister is on the money.
 

Clancy

Well-Known Member
6 April 2016
973
69
2,289
You can always get a second opinion somewhere else not involving your solicitor... A lot of firms offer first consultation free.... but if the case is more complex then a proper second opinion (where they study the case in detail) could be expensive!
 

Philip74747

Member
29 November 2017
3
0
1
And also, not being happy with your representation does not give you grounds to appeal, so sounds like the second barrister is on the money.

Yes, the barrister was from the same chambers. The grounds for appeal were not the first barrister's performance itself but the key aspects of the case that he bungled over and either did not properly put forward to the judge or omitted.

My question was just whether it was good practice or ethical for a barrister from the same chambers to provide appeal advice - given that they may be inclined to support the performance of their colleague and not bring that colleagues lack of thoroughness into question.

I feel like I was charged a few thousand dollars for someone to back up a chamber colleague.

If it's quite OK and no one sees any conflict of interest then I am prepared to hear that too.
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,726
1,056
2,894
www.hutchinsonlegal.com.au
When I was given what I thought was a dud barrister I refused to pay the last bill from my solicitor and explained why. There was a factor in my favour so the solicitor didn't chase me for the final invoice.

BTW, a layperson is not the best judge (pardon the pun) of whether a barrister omitted or played down a key aspect of a case. Barristers need to ensure they present relevant factors in a calm and rational manner. The key aspect the barrister 'fumbled or omitted' should have been in your affidavit and if the barrister chose not to stress that point it may well have been because it may have unnecessarily have irritated the judge. Point scoring in court can backfire badly.

I can't comment on what happened at court, however having a second barrister from the same chambers review a possible appeal is not a conflict of interest and won't be seen as such by the legal system. Generally speaking an appeal is unlikely to successful just because your legal team didn't do what you wanted. There is a high threshold to get over before a miscarriage of justice will be considered as a ground of appeal.
 

Clancy

Well-Known Member
6 April 2016
973
69
2,289
I do a lot of legal work in my job... I am not a legal expert at all, and yet I am constantly pointing things out to our lawyers.

I can describe the problem in one word...'skimming'.

What you have to understand is - Lawyers/barristers have a lot of work on their minds, this is what they do for a living. They are doing it every day, it is impossible not to become complacent, so when you present them with your case, they are trying to understand it as quickly and easily as possible. They want to keep it as simple as possible, trim the fat, do the case, take your money, and move on....and they will inevitably miss some important details (every time!) which I then have to point out to them.
 

Philip74747

Member
29 November 2017
3
0
1
100% right Clancy - and even worse when it is pointed out to them in court that they have omitted an important point and they are too weak to mention anything that they have overlooked for fear of facing the ire of a cranky old incompetent judge (since retired). Saving face for some is more important than the interests of the children!
 

Clancy

Well-Known Member
6 April 2016
973
69
2,289
100% right Clancy - and even worse when it is pointed out to them in court that they have omitted an important point and they are too weak to mention anything that they have overlooked for fear of facing the ire of a cranky old incompetent judge (since retired). Saving face for some is more important than the interests of the children!

Oh sorry, i did not cotton on that it was a custody case? (family law section der).

Personally, (personal opinion, not legal advice) I just have to take note that you are a man, then I need no further explanation why you lost the case.
 

Lennon

Well-Known Member
11 September 2014
270
36
719
It is definitely not a conflict of interest to engage a barrister from the same chambers for an opinion on appeal prospects. All barristers are required to be independent even if they share chambers.