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.
