The Gazette 1971

account of an error, being such an error as a cautious man might fall into. Within the limits indicated in those passages, a barrister has the obligation which goes with the right of profes- sional practice, to "bring to the exercise of it a reason- able degree of care and skill" ( Lanphier v Phipos, ante). This is an obligation to his profession : it is also an obligation to those who engage his services. Negligence in a unified profession The reports received indicate that in almost all cases of lawyers practising as barristers and solicitors the rela- tionship between lawyer and client is contractual, the lawyer can be sued for his professional negligence and there is no general immunity from actions of negligence in respect of his conduct of proceedings in Court. Mr. Orison S. Marden, National Correspondent of the American Bar Association, summarises the position in the United States (which is fairly typical of the rela- tionship now under review) as follows : The relationship between a lawyer and his client is contractual. In undertaking a client's cause, the law- yer engages that he is equipped to handle the matter with competence and reasonable diligence. If he fails to do so his client may sue him for any damages the client may have sustained by reason of the incompe- tence or negligence of the lawyer. The standard by which a lawyer's performance is judged is whether he performed his services with the care and skill which should be exercises by a member of the bar. A lawyer is liable for negligence in the conduct of Court proceedings and public policy does not bar an action by a client against him for such negligence. Dr. Robert Briner's report on behalf of the Geneva and Suisse Bar Association quotes extensively from the Swiss Code of Obligations to state the relationship of the law- yer ("Rechtsanwalt" or "Fursprecher", "Avocat" or "Avvocato"—equivalent to barrister and solicitor) with his client and the lawyer's liability for his negligence. Though expressed rather differently from the uncodified law in other countries where the practice of law is similarly conducted, the articles of the code appear to produce the like effect. Negligence of Austrian lawyers The General Civilian Law Code of Austria (ABGB) provides in Par. 1299 that everybody offering his ser- vices in public is considered to give by that offer an implied warranty of his competence. Jn reporting this provision Dr. Binder describes how the "standard of reasonableness" is applied : In order to apply this standard of reasonableness it has to be ascertained what a careful and experienced lawyer ought to have done or avoided. The judg- ment has to be found ex arte, considering only the situation and all facts known to the accused lawyer at the time when he made a mistake or failed to act. The Austrian lawyer has to find out in the first instance whether any question of importance to his case has been dealt with already by the Courts or in doctrine. He has to check all literature available to him. If he can find a prevailing opinion he has to fo'low it. He may also dissent but only if the client is willing to bear the risk connected with it after he has been advised accordingly by the lawyer. If there is no opinion or no prevailing opinion to be found, or if

the client agrees with a dissent from the prevailing opinion under circumstances just described, the law- yer will not become liable as a rule, provided, the course of practice followed by him is not contrary to the law or illogical. Division 2: Professional Negligence The most remarkable difference in regard to profes- sional negligence to be seen between the "fused" and "divided" professions is in the acceptance by the former of the principle that a lawyer is liable for his negligence in the conduct of Court proceedings. The question on this point was answered by most correspondents from those countries almost with a note of mild surprise that it should have been asked. However, some correspon- dents elaborated their replies to show the extent to which a lawyer is protected against claims for negligence in the conduct of an action, where he has made an error of judgment; but there appears to be a dearth of authority on this point. The Israel Bar Association's National Correspondent (Leah Weinberg) has this to say : If the proceedings are conducted negligently, there is no reason why an action for negligence would not lie against the lawyer. It should be remarked, however, that very rarely will it be possible to show that a lawyer was in fact negligent in the actual conduct of the case in Court. For example, it may happen that a lawyer decides to abstain from producing a certain document in Court or from calling a certain witness to give evidence. It may turn out later that such a document or such a witness were of great importance and in their absence the client loses his case. Never- theless, I do not think that the lawyer will be consid- ered negligent in such a case, as the decision whether or not to call the witness is rather a faulty exercise of a lawyer's discretion, but this will not amount to negligence on his part. On the other hand, if the lawver fails to lodge an appeal in time, this might. doubt, amount to negligence on his part, as this has nothing to do with the exercise of a lawyer's discre- tion, but amounts simply to failure to exercise reason- able care and skill. The least favoured advocate is probably to be found in Austria, where, according to Dr. Martin Binder's report: In a civilian law-suit against the lawyer for damages caused by his negligence in the conduct of a Court proceeding, this proceeding has to be reconsidered in fact. The judge involved with the claim for damages has to ascertain whether and to what extent the client would have won the failed Court proceeding, if the accused lawyer had not been negligent. Should it turn out that the client has had nevertheless no chance to win the case, the accused lawyer cannot be held liable for damages. Causal relationship is missing in such case. If the lawyer's performance reveals crassa negligentia he may be punished for it by the Disciplinary Council independently from any civilian law-suit for damages caused to the client. The arguments against any concept of a barrister being liable for negligence in the conduct of Court proceed- ings lose some of their force when considered in the light of views expressed by correspondents under whose systems liability of that nature is recognised.

Duty to notify Court of every relevant aspect of case In some cases the advocate's duty to the Court is "to 73