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A solicitor’s defence

A solicitor’s defence

By Stephen Warne

Advocacy 


Advocates’ immunity is at once more powerful and yet narrower than many understand. Until recently, advocates’ immunity was more powerful than many lawyers understood. However, it may also be narrower than many realise since the introduction of the Legal Profession Uniform Law on 1 July 2015 and the High Court’s decision in Attwells v Jackson Lallic Lawyers Pty Limited (Attwells)1 in May 2016. And perhaps not everyone is aware that the immunity is very likely peculiar to Australia – it is not a feature of English, United States, Canadian, Continental, Indian, South African or New Zealand law.2 More powerful than people realised More than a decade after D’Orta-Ekenaike v Victoria Legal Aid (D’Orta-Ekenaike)3 many solicitors are still unaware that they are just as immune as barristers for negligence in litigation, in court and out of court, regardless of whether they are engaged in an advocacy function or not. This has not changed. Clients have been prevented, by summary judgments based on the immunity, from prosecuting lawyers – even where there have been allegations of forgery.4 The immunity has defeated statutory claims, such as misleading and deceptive conduct claims.5 In Fritsch v Goddard Elliott6 the Supreme Court found that the solicitors’ negligence at and leading up to a mediation caused their client to settle matrimonial proceedings for nearly $1 million less than competent solicitors would have advised, and would have been achieved at trial. They had negligently failed to prepare the client’s case and then negligently failed to understand that the client did not have capacity when he instructed them to settle. Justice Bell found that the lawyers were immune from suit, a decision he said he was “driven to” by the (mainly NSW) authorities which he found “deeply troubling”.7 He ordered costs against the client and ordered him to pay the solicitors’ fees.

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