The Gazette 1971

Lawyer's Negligence

INTERNATIONAL BAR ASSOCIATION TOKYO CONFERENCE—SEPTEMBER 1970

Extract from the "International Bar Journal"

THE LAWYER'S LIABILITY FOR HIS NEGLIGENCE

THE LEGAL BASIS AND POSSIBLE INSURANCE COVER

Report submitted by Colin H. Dunlop, LL.B., Solicitor, New South Wales, Australia.

ARTICLES

PART I : INTRODUCTION

The replies by national correspondents to the question-

naire on this topic indicate a general interest in the

subject on the part of professional associations of law-

yers, but with differences of emphasis from one country

to another. Patient and discerning analysis of the ques-

tions raised, and careful attention to detail in the

answers have provided much more material than could

be condensed into a report suitable (as to length) for

presentation to the Conference; but this statement is not

to suggest that any of it has been wasted. I am greatly

indebted to the national correspondents who replied to

the questionnaire, for the careful consideration given to

the questions and their thorough and informative

answers.

A report of this nature would have little value if pre-

pared simply as a collation of the replies received.

With so many variations in the different legal systems

under which those attending the Conference practise

law, gaps in understanding are inevitable and these

must be bridged, if possible, by interpretation of the

material received. This is a formidable task, which might

appear to the Rapporteur to have been achieved, up to

a point, until he realises that the interpretation is that of

an Australian lawyer with no international experience.

It is also in the same role that he presents his own find-

ings. Although the sample obtained by the replies is

comparatively small, it will be treated as a fair sample

for the purpose of any general conclusions.

For convenience, the short phrase "liability for negli-

gence" will be used throughout this report to mean

"liability to his client for damages suffered by the client

through the lawyer's negligence".

PART II : THE LEGAL BASIS

Division 1: The Lawyer

It is at once evident that all lawyers do not stand in

the same position in this matter. The legal basis of

liability for negligence, where the liability exists, must

be ascertained by reference to the lawyer's professional

classification (or, in some cases, his field of practice) and

also to his relationship with his client. Different consid-

erations apply to: (1) the Barrister (or Advocate); (2)

the Solicitor (or Attorney); and (3) the Barrister and

Solicitor.

In the United Kingdom and in some British Com-

monwealth countries and Republics which were formerly

part of the Commonwealth, the practice of law is in the

two divisions of barrister or solicitor. Fusion of the two

branches in some Australian states is more apparent

than real, as the individual practitioner assumes one

role or the other and for practical purposes is either a

barrister or a solicitor. The legal basis of his liability for

his negligence would probably be determined by the

field of his practice rather than by his professional

classification.

Effect of professional division

Where the division exists, the solicitor, within the

limits to be stated in this report, is liable to his client

for his negligence. The barrister's position in respect of

his negligence is entirely different. Until the decision of

the English House of Lords in

Hedley Byrne and Part-

ners v Heller

it was commonly believed that no liability

for negligence could fall on a barrister; although, in

Rondel v Worsely

Lord Pearce

and Lord Upjohn

both express the view that Hedley Byrne added nothing

in this respect to

Nocton v Ashburton,

decided fifty

years before. It is to be doubted whether the latter case

caused even a ripple of apprehension in the Inns of

Court, whereas Hedley Byrne was regarded as posing a

real problem for counsel in respect of what he might do

outside his conduct of Court proceeding.

In all of the other countries represented in the sample,

the practitioner is a barrister and solicitor.

It is only where the lawyer practises as a barrister

alone that there is no contractual relationship with his

client. Where the relationship is contractual the lawyer

undertakes to bring to the conduct of his client's affairs

a proper degree of competence and skill. Primarily, this

elementary proposition is the legal basis of the liability

for negligence.

The following extract from Mr. D. A. Marshall's

excellent submission on behalf of The Law Society (in

England and Wales) gives a clear picture of the position

obtaining in countries where solicitors and barristers

practise separately :

Law Society's submission

Negligence

(1) The claim of the client against his solicitor is

one for breach of contract and is subject to the nor-

nnl rules applicable to contract claims, e.g. the claim

accrues at the time of the breach of contract, and not

at the time damage is suffered as a result of that

breach. Normally the claim will be pleaded as one of

negligent performance by the solicitor of his contrac-

tual obligations.

The barrister's position is quite different, since

there is no contractual relationship with the client,