My friends on Twitter had a discussion regarding the nomenclature used to describe lawyers. This started a parallel discussion about the difference between a “barrister” and a “solicitor”. I talked a bit about the regulatory aspects of that in another article.
However, my friends also discussed that another important difference between solicitors and barristers is that barristers will not ordinarily be held liable in negligence for in-court work, or for out-of-court work that leads to a decision affecting the conduct of in-court work. The advocates’ immunity was confirmed in the well-known case, Giannarelli & Shulkes v Wraith (1988) 165 CLR 543; (1988) 81 ALR 417.
I notice however that the court in Giannarelli did state that a solicitor acting as an advocate would not be liable for in-court work: per Mason CJ at 423. Also, in D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; (2005) 214 ALR 92, the court held that a lawyer cannot be liable in negligence for advice to a client leading to a decision affecting the conduct of the case in court, and that this applies whether the lawyer acts as advocate, or as solicitor instructing an advocate.
Generally, a barrister’s error of judgment would not amount to negligence unless the error was such that no reasonably competent and properly instructed barrister could have made the error: Saif Ali v Sydney Mitchell & Co  AC 198. The standard of reasonable competence could be affected by the barrister’s purported expertise in an area of law: Hayden v NRMA Limited (2000) 51 NSWLR 1. Monahan (2007) provides a useful and concise summary of the above.
The primary underlying rationale for the immunity is the object of finality in resolution of disputes and to avoid re-opening proceedings: Giannarelli v Wraith; D’Orta-Ekenaike v Victorian Legal Aid.
So, what kind of barrister work might lead to a negligence claim? I thought it would be useful to look at this from a professional indemnity insurer’s point of view. Fortunately, the Legal Practitioners Liability Committee (the indemnity insurer for solicitors and barristers in Victoria) provides useful publications and reports on its website. What follows is extracted from that material.
In 2006, Toohey and Rowell reviewed claims made against barristers during the 2005-2006 year. They observed that not many claims were made against barristers, and of the claims that were made many were withdrawn or settled. Claims in the commercial litigation context were the most common. They said that the claimants often fell within one of two categories: the ‘poor loser’, and the ‘novice litigator’. The former might be a self-prescribing and opinionated client whose expectations are difficult to manage; an example of the latter might be an inexperienced small businessperson involved in a debt recovery dispute that spirals out of control.
In both situations, the risk management strategy would be focused on communication, the management of expectations, adequate disclosure of processes, and verification of the client’s understanding of the advice given to them.
Other issues identified in the claims involved personal costs orders, failure to attend to the brief, fee disputes, lack of collaboration between barrister and instructing solicitor, getting the law wrong – particularly the failure to update statutory claims and to draw advice and pleadings appropriately, acting outside of a usual area of practice, acting for friends and multiple clients, failure to document attendances properly, personal conduct during mediation, and problems with settlements – particularly errors made under the pressure to settle and in documentation of settlement and release agreements.
In 2007, Toohey reviewed professional liability claims against barristers for the previous 2 years and found that:
Barristers of more than 15 years experience working in the field of commercial litigation were the most likely candidates for a claim.
The risk areas most likely to give rise to a claim were:
- settlement of litigation in commercial litigation (most prevalent), personal injury litigation and family law;
- costs disputes giving rise to negligence allegations; and
- applications for personal costs orders.
Toohey provided examples of settlement scenarios gone wrong:
- A non-party involved in the settlement agreement; for example a director of a company that is a party to the proceeding alleges she or he was not personally advised that they were personally providing a guarantee as part of the settlement agreement. The barrister failed to distinguish between the client company and the director as distinct legal persons, each needing independent legal advice.
- Incomplete documentation of settlement terms after marathon dispute resolution procedures; orally agreed terms are not included in the settlement document and are difficult or impossible to enforce. Further, the client is not properly advised regarding the risk of failing to formalise the oral terms.
- Completing settlement terms in the absence of the instructing solicitor, resulting in loss of continuity and the possibility of settling on incomplete instructions, resulting in unintended consequences for the client.
- Overly optimistic (or pessimistic) initial advice provided by counsel, particularly on matters of statutory construction, which when eventually determined at trial turn on narrow factual or legal issues not fully contemplated at the time of the initial advice. This can prompt a client to allege, during the course of costs disputes, that counsel provided negligent advice but for which the client would have desisted (or persisted) with its claim.
Toohey observed these scenarios often involve a failure to manage expectations, communicate and document effectively, to think laterally beyond the immediate circumstances, and to review matters at regular intervals to take into account missed or fresh developments.
Personal costs orders made by the Court (of its own volition or on application) against the barrister are treated as both disciplinary and compensatory. A barrister might lodge a claim with the professional indemnity insurer because of the liability for compensation.
According to Toohey, conduct that might attract a personal costs order includes:
- Gross neglect regarding matters that it is the barrister’s duty to accurately ascertain;
- ‘Serious dereliction of duty, professional misconduct or serious misconduct’.
- ‘Serious failure to give reasonable attention to the relevant law and facts’.
- ‘Using the Court’s processes for improper and ulterior purposes’.
- ‘Evading rules intended to safeguard the interests of justice’.
- ‘Knowingly conniving at incomplete disclosure of documents’.
Historically, courts would not lightly make such costs orders, because:
- it would inhibit barristers’ conduct of litigation and could lead to a conflict between the barristers’ self-interest in risk management and their duty to act in their clients’ best interests;
- given the legal privilege that might attach to the barrister’s instructions it may not easy be easy for the barrister to answer the charge of negligence;
- the Court’s jurisdiction to make personal costs orders is summary in nature; the facts concerning the conduct attracting the sanction should verified by the court without difficulty.
In 2008, Hine observed that the LPLC had received notice of 115 actual or prospective claims against barristers over the previous 3 years. Commercial litigation remained the most prevalent practice area for claims. The issues identified by Toohey, and Toohey and Rowell, remained relevant.
The drafting of pleadings was sometimes in issue, with parties not properly identified, or pleadings not competent to show a cause of action, or insufficient care taken with a novel cause of action. Where the court awards costs against a party for pleadings deemed too prolix, or requiring repeated amendments, or are struck out, the client might make a claim against the barrister for those costs. See also Monahan (2007) for a useful paper regarding counsel’s responsibilities with pleadings.
Hine notes that clients may seize on judicial criticism as a springboard for a claim against the barrister. Examples identified by Hine include:
- ‘a failure to appreciate that a claim or defence was doomed to fail;
- a failure to raise an alternative cause of action or defence with better prospects of success;
- a failure to call a relevant witness or lead evidence of a particular type;
- amendments to pleadings at trial that make the case at trial significantly different to the pleaded case;
- a failure to achieve settlement of a matter where the costs of litigation far outweigh the amount of the claim; and
- persisting with a claim or defence at trial that becomes unviable as the evidence comes out.’
On balance, many if not all the issues raised in this article apply to all lawyers, solicitors and barristers alike. Perhaps the difference between solicitors and barristers on matters of professional liability are not so great. Barristers, however, are specialists in advocacy and court work and it is submitted they are likely to be held to a higher standard than solicitors for work that is identified as “barristers’ work”.
Hine, B 2008, ‘Update on barristers’ claims’, retrieved 29 December 2008, <http://lplc.com.au/media/file/barristers/VictorianBarv2.pdf>.
Monahan, P 2007, ‘Pleadings – Counsel’s Responsibilities and Risk Management Issues’, retrieved 29 December 2011,< http://lplc.com.au/media/file/barristers/Pleadings_CounselsResponsibilitiesandRiskManagementIssues.PDF>.
Toohey, J 2007, ‘“Getting Caught Short” Barristers’ professional liability exposures’, retrieved 29 December 2012, <http://lplc.com.au/media/file/barristers/GettingCaughtShort.pdf>.
Toohey, J & Rowell, P 2006, ‘Why do barristers get sued?’, retrieved 29 December 2011, <http://lplc.com.au/media/file/barristers/Why_Do_Barristers_Get_Sued.PDF>.