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 '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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