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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
's
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
10
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
11
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).
12
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."
13
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;
(c) merely made an error of judgment in some matter
of discretion or doubtful area of law;
(d) acted on counsel's advice properly obtained.
14
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.
15
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.
16
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."
17
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.
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