The question of barrister’s immunity was raised by my recent post concerning the former Chief Magistrate of Queensland. Ms Fingleton is suing her barristers and solicitors in tort and contract. However, as noted in comments on the post, any barrister or solicitor who makes an argument in court has a special immunity from suit in negligence known as “advocate’s immunity”. This means that you cannot sue your barrister for his or her conduct during the course of a trial or appeal. Ms Fingleton may sue her legal advisers for pre-trial advice and the like, but is unlikely to succeed on the basis that the arguments made by her barristers during the trial were negligent…unless the High Court reconsiders the rule.
This rule was challenged as recently as 2005, in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12. The High Court was invited to reconsider the advocate’s immunity rule which it had confirmed in Giannarelli v Wraith [1988] HCA 52. D’Orta-Ekenaike involved a man who was charged with rape. He sought the assistance of Victorian Legal Aid, who retained a barrister on his behalf. At the commital, the man pleaded guilty to rape on the advice of VLA and his counsel. However, he alleged that he was pressured into doing so by his solicitors and counsel, and at trial, he later sought to plead not guilty. His plea of guilty during the commital was led in evidence against him and he was convicted and sentenced to three years in gaol. He appealed against this conviction and was awarded a retrial by the Court of Appeal. Upon retrial, the man was acquitted of the charges. He then sought to sue his solicitors and counsel on the basis that their advice was negligent.
The High Court concluded that the advocate’s immunity should continue to apply having regard to two central policy considerations (at [25]):
(a) the place of the judicial system as a part of the governmental structure; and
(b) the place that an immunity from suit has in a series of rules all of which are designed to achieve finality in the quelling of disputes by the exercise of judicial power.
By challenging the conduct of the advocate, the High Court argued that there were adverse consequences for the administration of justice which would flow from the re-litigation where negligent conduct on the part of barristers and solicitors was alleged. Linked to this was the issue of finality of proceedings. At [84], the High Court concluded:
To remove the advocate’s immunity would make a significant inroad upon what we have earlier described as a fundamental and pervading tenet of the judicial system. That inroad should not be created. There may be those who will seek to characterise the result at which the Court arrives in this matter as a case of lawyers looking after their own, whether because of personal inclination and sympathy, or for other base motives. But the legal principle which underpins the Court’s conclusion is fundamental. Of course, there is always a risk that the determination of a legal controversy is imperfect. And it may be imperfect because of what a party’s advocate does or does not do. The law aims at providing the best and safest system of determination that is compatible with human fallibility. But underpinning the system is the need for certainty and finality of decision. The immunity of advocates is a necessary consequence of that need.
I’ve always been really uncomfortable about the advocate’s immunity rule. It looks to me suspiciously like a rule whereby ex-barristers (a.k.a. judges) protect their own.
I also noted very recently (in a post on female barristers) that that the quality of advocacy is sometimes somewhat variable, and that some barristers are downright pathetic. Therefore, I was interested to read that the chairman of the Australian Advocacy Institute has a similar opinion:
Professor Hampel, who served on the Victorian Supreme Court from 1983 to 2000 and is chairman of the Australian Advocacy Institute, said judges “were constantly reporting cases of barristers showing insufficient preparation, legal research, knowledge of basic case law, legislation and advocacy skills”.
“Ultimately the people who suffer are clients, who face a serious risk of injustice.
“The court system also suffers from poor advocacy because it is much harder for judges to conduct cases and run an efficient system when they are receiving insufficient assistance from barristers and other advocates.”
Current assessments were not adequate for ensuring competency in skills such as development of case theory, witness examination, presenting argument and addressing juries, he said.
He claimed that a significant minority of barristers should not be representing clients.
The Australian Bar Association has agreed and responded by saying that new barristers often do not get enough experience. The Victorian Bar has also agreed with Professor Hampel’s comments, but said that barristers who do not do at least a competent job are unlikely to be briefed again.
From my own observations, the problem is not one which is confined to new barristers (as the Australian Bar Association seems to imply). I have seen some barristers who seem to have been at the Bar for many years, but their performance does not reflect this in any way (who knows how they survive and why they keep getting briefed?) I would also argue that, unfortunately, I have also seen incompetent barristers briefed again and again. Here, I would draw on the comment of Marcellous in relation to my recent post on billing:
[U]nlike with, say, the barber or the greengrocer or even the car repairer, ordinary consumers don’t generally have enough repeat transactions to determine whether their lawyer is value for money compared to other lawyers or not.
He is right. I would also argue that many ordinary consumers do not have enough repeat transactions to determine whether their lawyer is competent or not. Further, many probably do not have the knowledge to assess their lawyer’s performance. A barrister may sound very impressive to a layperson, whereas a litigator may assess the performance as sub-standard waffle. Of course, this cuts both ways. A layperson may think that their barrister has done a terrible job, whereas a independent lawyer observing might think that the client was damn lucky not to come out a lot worse!
I wonder what would happen if advocate’s immunity was removed? Would we see more incompetent counsel sued or not? I certainly don’t have much truck with the “floodgates” argument: it may be that there would be an initial rush of claims, but once the law settled, it would go to a trickle. And perhaps it would cause some counsel to sharpen up their act.
10 Comments
The finality argument seems a bit weak to me. After all we have appeal courts to deal with the possibility that judges make mistakes. So why not allow a recourse to legal action if your lawyer stuffs up. The benefits from removing immunity would seem to far outweigh the costs. I say bring it on.
I agree, Terje – surely it’s better that you have recourse to justice if your lawyer stuffs you around?
I agree with you with the ‘repeat transactions’ point, but have you considered how the finality point to its full extent?
the gist of negligence is harm, and for harm to exist we must look at the plaintiff’s position had the defendant not committed the alleged act(s)/omission(s) [a variant of the 'but for' test in causation]. it follows that, in assessing an advocate’s negligence, a court must speculate what the plaintiff’s position *would have been* had the advocate not committed the act(s)/omission(s) complained of. the court cannot do that unless it impugns the previous court’s decision, to a greater or lesser extent.
because of the nature of the work that advocates do, in order to remove advocate’s immunity, you are, in effect, eroding the rule of res judicata. and that is something with which i am comfortable.
Wen,
So what? If a judge decides that you might well have won the case if not for the incompetence of the lawyer then he/she is merely one of many that second guesses the decisions made by courts. And if there is truth in the claim that you might have won except for a lawyers incompetence then surely this should not be merely swept under the carpet and forgotten. It is better that 100 judges have egg on their face than one innocent person goes to jail.
TerjeP: “It is better that 100 judges have egg on their face than one innocent person goes to jail.”
I thought we were talking about a negligence claim, not criminal appeals here. Drawing analogies from criminal law is unhelpful, if not downright irrelevant. One should not forget that even criminal appeals are subject to the proviso that there must be a “substantial miscarriage of justice”.
And my argument is not that “lawyers’ incompetence then surely this should not be merely swept under the carpet and forgotten”, but rather another, more fundamental consideration – viz, certainty of legal decisions – takes precedence.
Wen, I totally understand your argument.
Let’s take Ms Fingleton’s case. The alleged negligence is that her legal advisers failed to raise the issue of her immunity from prosecution as a Magistrate. Now in my opinion, it’s actually a grey area as to whether her conduct was immune from prosecution – was it in the course of her duties as a magistrate or not? The HCA decided it was, but a lower court may have decided that it was not. I suspect that if I was the trial judge, I would have decided that her conduct was outside the purview of the Magistrates’ immunity anyway.
So the outcome for her may have been no different if her counsel had raised it, and she might still have had to go right up to the HCA. Who knows? It is very difficult to predict. But were her legal team negligent if they just totally failed to consider the issue? I’d say that they were.
I think the answer is not to maintain advocate’s immunity, but to scrap the notion of the “but for” test in this context. When we do that, we also scrap the idea that we have to second guess what the lower court would have done.
It’s a bit like a medical negligence case actually – some of those multiple sufficient causes cases where but for the negligence, the patient might still have suffered the harm anyway (eg, McGhee v National Coal Boards – mesothelioma case).
Indeed, when I was at the conference in Singapore, I heard an interesting paper by Elise Bant of Melb Uni on the issue of causation in decision making which I think bears directly on this issue. Say a financial adviser tells you that a particular investment product is really good, and you invest in it and make a massive loss. The financial adviser commits a breach of fiduciary duty to you. What if you would have invested the money in some dodgy scheme anyway? The financial adviser has still breached his or her duty to you. In such circumstances, Ms Bant says that courts abandon the “but for” test, and simply require that the advice was “a factor” of the harm. “But for” really doesn’t work.
So actually, if you take this approach, you don’t have to show that the court would have decided the issue differently. You just have to show that the legal adviser’s negligence is “a factor” in what happened. And you don’t have to reopen the head proceedings.
I think it’s strange that Fingleton wasn’t aware that she had immunity, or at least that it was a possibility.
Joseph, the whole thing is a bit strange. Why was no one aware of it? Perhaps it was raised and dismissed as a possibility early on in the peace?
Re your account of Elise Bant’s paper. Is causation the same for breaches of fiduciary duty as it is for breaches of tortious duty in negligence? I’ve memorably seen one “I wasn’t warned” case (true meaning may really have been “I wasn’t warned in writing [so there's no evidence that I was]” but we’ll let that pass for the purpose of argument) collapse in the face of a concession that, actually, “I knew anyway.”
From memory, I think she was concentrating on questions of unjust enrichment rather than negligence. However, she did take guidance from the tort cases such as the one mentioned above (which is what reminded me of her paper when I was writing my comment).
She looked generally at situations of “endemic forensic uncertainty”, where it really isn’t clear whether the actions of a particular defendant are adequate on their own to cause a particular action to occur. These include negligence cases, crime cases and other private law cases (estoppel, undue influence and the like).
As she noted, decision making in particular is really hard to analyse. But she looked at decision making in UE context, not a negligence context.
She also argued that if we are going to let policy concerns enter into the issue, we should not do it at the causation stage. That is, the causation test should not be the limiting factor – rather we should be open about the kinds of policy questions we need to consider in different areas of the law.
Warnings are a particularly difficult area (whether one is talking about fiduciary law or negligence). All too often the decision maker would have made the decision anyway, as you say, regardless of whether there was a warning.
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[...] says, lawyers flock together. Notice, for example, that the only professional in Australia who is not liable for professional negligence is the barrister, as decided by a bench of judges made up of…yes, mostly ex-barristers. That kind of decision [...]