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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
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