Advocates’ Immunity and Legal Negligence

Advocates’ immunity is a doctrine which protects lawyers, both solicitors and barristers, from being sued by their clients for negligence.

In the case of Kendirjian v Lepore, decided in March 2017, the High Court was offered a chance to abolish the doctrine. Disappointingly, the court refused to change course from its earlier decisions, limiting the scope of the protection but declining to reopen the debate about whether advocates’ immunity should remain part of the law of Australia.

This means that, for the foreseeable future, Australian lawyers will continue to enjoy this unjustified and outdated protection.

What does advocates’ immunity protect?

The protection given by advocates’ immunity does not mean clients can never sue their negligent lawyers.

The immunity applies only to work performed in the courtroom and work performed out of the courtroom that is intimately connected to how the case is being run in court. For example, a lawyer who poorly decided which witnesses to call in support of your case would probably be protected under advocates’ immunity.

How recent changes affect lawyers and their clients

In the recent case of Attwells v Jackson Lalic Lawyers Pty Ltd, the High Court held that the immunity does not protect lawyers who negligently advise their client to settle or compromise a claim out of court. This is because advice to settle does not relate to a judge’s determination of the dispute.

The High Court unanimously affirmed this decision in Lepore, removing any doubt that lawyers who negligently advise their clients to settle will not be able to hide behind advocates’ immunity.

Why the immunity should be removed

While we applaud the High Court’s erosion of the immunity in Lepore and Attwells, this modest reform does not go far enough. In our view, justice requires that Australia follow in the footsteps of fellow common law jurisdictions New Zealand, England and Wales and abolish the doctrine altogether.

The immunity is unique to the lawyer-client relationship, advantageous to lawyers at the expense of their clients, and the reasons cited for maintaining it in a contemporary Australia are tenuous and unpersuasive.

The primary reason given for keeping advocates immunity in contemporary practice is protecting the public interest in the finality of court decisions. I.e. if a court were to hear a legal claim against a lawyer for the way they had conducted a case, it may be forced to undermine the original decision by second-guessing what the outcome may have been, had the lawyer been more competent.

This jeopardises the finality of court decisions and would, the High Court believes, detract from the public’s confidence in the judicial system. Advocates’ immunity prevents clients from suing their lawyer as a means of re-litigating resolved disputes through a side door.

In D’Orta-Ekenaike v Victoria Legal, an earlier High Court case upholding the immunity, Kirby J made the compelling argument that the immunity “reduces equality before the courts …” which, in turn, “is capable of breeding contempt for the law”.

In the same case, McHugh J argued that the immunity for legal professions is not unique, nor does it create inequality. His Honour put forth scenarios in which members of other professions cannot be sued despite causing harm to others. For instance, a victim of crime cannot sue a police officer for failing to apprehend a criminal nor can an investor generally sue an auditor for carelessly auditing a company (in the absence of a direct contract). As Kirby J responded, these comparisons are unconvincing because those relationships lack the reliance that is key to the lawyer-client relationship.

One relationship that may be comparable is that between doctors and patients; a relationship considered by Lord Steyn in Arthur J S Hall & Co v Simons. In that case, the House of Lords decided that advocates immunity was no longer valid in England.

Like lawyers, doctors owe duties beyond those owed to their clients, and which may, on occasion, conflict with their duties to the client. They are responsible to a higher code. Like lawyers, doctors swear oaths to uphold that code. Like lawyers, doctors may have to make instantaneous decisions when problems arise. However, unlike lawyers, doctors do not receive immunity for the work they perform in healing an ailment.

Is any feature of the relationship between lawyer and client so distinctive that it justifies this extraordinary immunity? The answer, we contend, is no.

Wilson J once described the immunity as indispensable to conserving public confidence in the administration of justice. What could possibly undermine public confidence in the administration of justice more than giving special protection to lawyers at the expense of the public wholly reliant on the judicial system to right the wrongs done to them?

Advocates immunity should be abolished, and if our highest court won’t do it, the legislature should.

This an extended version of a similar article written by Alexander Hickson in Lawyers Weekly, Advocate’s immunity – without fear or without favour but not both.

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