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

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 1 it was commonly believed that no liability for negligence could fall on a barrister; although, in Rondel v Worsely 2 Lord Pearce 3 and Lord Upjohn 4 both express the view that Hedley Byrne added nothing in this respect to Nocton v Ashburton, 5 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, 71

PART I : INTRODUCTION 1 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