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case as is usually and ordinarily adopted in his
branch of the profession;
(e) he is liable for failure to institute or prosecute
proceedings with due diligence and for failing
to instruct counsel adequately, and
(f ) a solicitor is liable if he does not explain to his
client the nature, substance and effect of a docu-
ment which he is permitting a client to execute.
14. The memorandum points out that a solicitor not
only incurs the full liability for negligence of all other
professions, but in the following respects he is in a less
favourable position than any other profession :
(a) Section 7 of the Attorneys' and Solicitors' Act,
1870, provides that a provision in an agreement
between a solicitor and his client respecting the
amount and manner of payment of his remun-
eration relieving the solicitor from liability for
negligence is wholly void.
(b) In an agreement as to remuneration for con-
tentious business a provision excluding the lia-
bility of the solicitor for negligence is void—
per Tindal C. J. in
Lamphier
v.
Phipos
[1838]
8 C. & P. 475.
(c) A solicitor's bill of costs is subject to taxation.
The Taxing Master has access to the solicitor's
entire file and not only ensures that no item is
overcharged but that the solicitor will not be
remunerated for work deemed to be unnecessary
or resulting from neglect on the solicitor's part.
(d) A solicitor is an officer of the court, and in any
matter coming before the court in which he is
professionally interested he may be penalised
either in costs or in compensation to his client
if the court forms the opinion he was negligent
or remiss.
Because the provisions of section 3 of the Solicitors
Act, 1954, and section 61 of the Courts (Supplemental
Provisions) Act, 1961 (which repealed and reenacted
in similar terms section 93 of the Courts of Justice
Act, 1924) may have altered the previous position that
solicitors were officers of the court or were, to be
deemed to be such, as they were under section 78 of the
Supreme Court of Judicature Act (Ireland), 1877 (and
as they now are in England under section 50 of the
Solicitors Act, 1957), the Committee do not feel it is
necessary to express a final view on the question of
whether solicitors are now officers of the court.
15. The Law Society's memorandum also draws atten-
tion to the position in regard to complicated non-
litigious matters in regard to which it seems that a
solicitor who obtains and acts on counsel's advice is
immune from action for professional negligence, pro-
vided that the following conditions are complied with :
(a) the solicitor must have had reasonable grounds
for belief that the barrister whom he instructed
was competent in the class of case on which
the barrister was asked to advise;
(b) all the relevant facts of the case must have been
fully and accurately presented to the barrister;
(c) the solicitor must have no reasonable grounds
for believing that the advice which he receives
is mistaken or erroneous; and
(d) the solicitor
bona fide
acts on the advice received
and has not been prohibited by his client from
doing so.
(16) The memorandum points out that counsel's
advice is no protection to a solicitor where the solicitor
in the particular circumstances of the case ought to have
the knowledge himself
(
Glebe Sugar Refining
Com-
pany Limited
v.
Greenock Port and Harbour
Trustees
[1921] 65 Sol. Jo. 511 per Lord Birkenhead at page
552) or in any matter of normal procedure or not
involving special difficulty. Therefore, in all matters of
normal procedure not involving special difficulty or
where the law is reasonably straightforward, the lay
client is protected against negligence by his possible
right of action against the solicitor. Even on a difficult
or doubtful point of law, if a solicitor takes it upon
himself to advise a client, he may be guilty of negli-
gence if he failed to warn the client that the matter
was not free from doubt and that counsel's opinion
should be taken
(
Richards
v.
Cox
[1942] 2 All E.R.
624).
17. It appears that a similar situation arises in
connection with advising and preliminary work in the
litigation field. The judgment of the High Court (Mr
Justice Henchy) in
Millard & Another
v.
McMahon
(delivered 15 January 1968—unreported) notes that
'(it is well settled that where a solicitor lays his client's
claim before competent counsel and acts on counsel's
advice, he is not liable for negligence".
18. The solicitor's liability for professional negligence
is partly based on the contractual tie between himself
and his client. The barrister, on the other hand, has no
contractual relationship with the client and is not there-
fore entitled to sue the client for his fees. However,
the barrister's immunity in respect of advocacy work is
not founded on the absence of a contractual relation-
ship but, according to the opinions in
Rondel
v.
Worsley,
on considerations of public policy.
Views submitted to the Committee
(a)
Advocacy
Work
19. The view has been submitted to us that the
interest of the public would best be served by preserving
the immunity which has hitherto been enjoyed by
barristers against any action for negligence arising out
of their conduct of cases in court.
20. The immunity of the Bar in regard to advocacy
work may amount to a diminution, however slight, of
the citizen's right of recourse to the courts but, never-
theless, it is argued that on balance the citizen's rights
are best served by a fearless and independent barristers'
profession whose members can conduct cases «free from
the fear of retribution by an ex-client who, having
lost his case, decides to sue his counsel.
21. In relation to the work of advocacy carried out
in court either by a barrister or a solicitor, the view is
urged that it would be undesirable from the public
point of view and unfair to the practitioner to expose
him to the danger of an action for negligence in respect
of any alleged error of judgment committed by him in
the conduct of a case. The work of the advocate in
court in this respect differs completely from that under-
taken by other professional men. This is particularly
true under the adversary system of trial of actions. Each
case involves a contest between the advocate and his
opponent and calls for a very difficult assessment of
the tactical approach to each case which may have to
be varied from time to time throughout the hearing of
the case. New and unexpected developments are always
liable to arise in the course of a hearing. The advocate
is faced with the necessity of making split-second
decisions, often while he is on his feet and addressing
the court or questioning a witness. It would add im-
measurably to the difficulty of his work if he had to
operate under the constant threat of an action for
damages by an unsuccessful litigant, and this, in turn,
65