The Gazette 1971

bring to its notice every relevant aspect of the case

whether favourable to his client or otherwise"—which

must surely be honoured as much in the breach as in

the observance, at least where litigation is conducted

under the adversary system; in others the standard is

closer to that reported by Mr. Marden (American Bar

Association) :

It is generally true that when appearing in Court, a

lawyer, though bound to deal with the Court and

opposing counsel with candour, does not have an obli-

gation to bring to the Court's attention every rele-

vant aspect of the case known to him, whether in his

client's favour or otherwise. However, if a lawyer

knows of a Court decision or statute which the Court

clearly should consider and which has not been cited

by opposing counsel, he must disclose it to the Court

even though adverse to his client's position.

When the Code of Professional Responsibility

adopted by the American Bar Association in August

1969 after considerable study and discussion has as

yet been formally adopted in only a few states, it is a

fair statement of the standards generally prevailing

in the United States. Under that Code a lawyer is

obliged not to knowingly advance a claim or defence

that is not warranted under existing law, or know-

ingly make a false statement of law or fact, or parti-

cipate in the creation or preservation of evidence

when he knows, or it is obvious that, the evidence is

false. In criminal prosecutions a public prosecutor

is expected to make timely disclosure to counsel for

the defendant or to the defendant if he has no

counsel, of the existence of any evidence, known to

the prosecutor, supporting the innocence of the

defendant.

Nothing he is required to do by recognised rules can

involve an advocate in liability to his client for negli-

gence. Equally a proper exercise of his judgment while

acting as an advocate should be an answer to a claim

that he was negligent in following a certain course. But

where a client suffers damage because the barrister

acting for him is guilty of gross negligence in some act

or omission or even does not exercise a reasonable degree

of competence and skill, it is hardly just that the loss

should fall on the client.

Solicitor

liability for negligence

An aspect of the solicitor's liability for his negligence

which may be peculiar to the English system and its

branches is the Court's interest in his conduct in that

respect. In

Myers v Elman

counsel invited the judge

to exercise the Court's jurisdiction over its officers and

to order the solicitors to pay the costs of the action on

the ground that they had been negligent in the conduct

of the proceedings. It was held that "misconduct or

default or negligence in the course of the proceedings is

in some cases sufficient to justify an order. The primary

object of the Court is not to punish the solicitor but to

protect the client who has suffered and to indemnify the

party who has been injured." The rule that an attornev

may be ordered to pay costs is found as early as 1738

when an attorney was ordered to pav costs of an amend-

ment of a record (and as late as 1969 when the High

Court of Australia ordered a solicitor to pay costs

incurred because he was not in Court to instruct

counsel).

Questions as to limitation and assessment of damages in

connection with actions against lawyers for negligence

make it important to determine the nature of the pro-

ceedings. In the case of the solicitor, his liability to his

client rests on contract.

"The authorities show beyond doubt that the duty

which a solicitor owes to his client arises

ex contractu

and apart from the contract between him and his client

the duty does not exist at all."

He will be excused if he shows that he

(a) acted on his client's instructions reasonably

believed to be correct;

(b) proceeded on express instructions after fully

explaining to the client the risk of so doing;

of discretion or doubtful area of law;

(d) acted on counsel's advice properly obtained.

Hedley Byrne considered

It is a principle of English law that no civil injury is

to be classed as a tort if it is solely a breach of contract.

There is sometimes a concurrent liability in tort and

contract, but only if a duty exists independently of the

contract. The breach by a solicitor of a fiduciary duty is

not a tort.

It is conceivable that a solicitor might incur

a liability under the principle laid down in

Hedley

Byrne v Heller,

but not, it is submitted, to his client,

who must rely on the contractual relationship. The

client's damages are thus measured by his pecuniary

loss, as many authorities show.

The same basis would be found in the case of barris-

ter and solicitor, because of the contractual relationship.

There is, of course, the special case referred to in

Hedley Byrne v Heller,

of liability under a contract

without consideration. "A promise given without con-

sideration to perform a service cannot be enforced as a

contract by the promisee; but if the service is in fact

performed and done negligently the promisee can re-

cover in an action in tort."

The lawyer acting for a

litigant under a "Legal Aid" scheme would be liable for

his negligence in tort, under the systems known to the

Rapporteur.

Some replies from national correspondents of "barris-

ter and solicitor" countries refer to an alternative cause

of action in contract and in tort in respect of the law-

yer's negligence. These countries apparently have

different concepts of tort and contract from those found

in English law.

The liability of the barrister in the "divided profes-

sion" countries if it exists, could only arise outside his

conduct of litigation, as Mr. Rink emphasises. It would

rest on

Hedley Byrne v Heller

and would be a liability

in tort, with the consequent differences in respect of

limitation and damages.

For professional associations are directly concerned

with the negligence of their members. Exceptions are

reported by Dr. Jorgen Hansen (Denmark), who writes:

On assessment of whether a lawyer has acted improp-

erly or negligently the Courts of law will base their

verdict upon whether the lawyer has acted in con-

formity with the professional standard that must be

demanded for the exercise of the lawyer's profession.

In such cases the law Courts will normally ask for

the view of the Association of Danish Lawyers in the

matter. This view will normally form the basis of the

Court's finding in the matter of damages;

and by Mr. K. Halim, whose reply states that:

The U.A.R. Bar Council is competent to adjudicate

between the lawver and his client on the question of

the lawyer's negligence.