An Insight into the Doctrine Protecting Legal Practitioners in Court-Related Work
Advocates’ immunity is a legal doctrine that protects solicitors and barristers from being sued for negligence in their conduct of court proceedings and related preparatory work. This principle is deeply rooted in public policy, designed to protect the efficient and effective administration of justice. It is said that advocates’ immunity, enables legal practitioners to focus on their duty to the court without fear of personal liability, even when it might conflict with a client’s interests.
Whilst advocates’ immunity remains a significant doctrine in Australian law, it has been largely abolished in other common law jurisdictions, including England, Canada and New Zealand. These countries have moved away from the doctrine, reflecting a trend towards a greater accountability for legal practitioners and recognising clients’ rights to pursue negligence claims against their lawyers.
In this article we explore the origins, rationale, key cases, and limitations of this legal principle to provide a clear expose of when it applies and why it applies.
What is Advocates’ Immunity?
Advocates’ immunity protects legal professionals from claims of negligence arising from their conduct in court and work that is closely connected to court proceedings. This includes tasks such as preparing pleadings, advising on court strategies, and preparing argument and submissions. However, it does not extend to unrelated legal advice, transactional matters, or administrative errors.
The doctrine is aimed at preserving the finality of court decisions and ensuring legal practitioners are not inhibited in their advocacy roles by concerns over potential lawsuits. Yet, this protection has limitations and has been narrowed significantly over time through judicial interpretation
The Foundations of Advocates Immunity in Australia
The origins of advocates’ immunity can be traced to English Law. In Rondel v Worsley [1969] 1 AC 191, where Lord Reid observed:
“Counsel must not be subject to any action for negligence in respect of his conduct of a case in court, or in respect of his preliminary work connected with it…if he were subject to such an action, he might be tempted to depart from his duty to the court in order to protect himself against possible action by his client”.
This sentiment was carried into Australian law and reinforced by the landmark Australian case of Giannarelli v Wraith [1988] HCA 52. This case solidified the long-held position in Australia regarding advocates’ immunity, ruling that barristers and solicitors are immune from negligence claims in their conduct in court and preparatory work “intimately connected” with court proceedings. The court emphasised that a lawyer’s primary duty is to the court, ensuring the fair and efficient administration of justice.
Key Australian Case Defining Advocates’ Immunity
- Giannarelli v Wraith (1988): In this case, the High Court of Australia ruled that both barristers and solicitors are protected by the advocates’ immunity for their conduct in court and preparatory work that directly impacts the judicial process. Examples include drafting pleadings that shape the course of litigation or advising a client on the presentation of their case. The court also established boundaries for the immunity, ensuring it applies only to work closely tied to court proceedings. General legal advice or services not directly influencing court conduct or outcomes fall outside its protection.
- D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12: this case reaffirmed the principles set out in the Giannarelli case but sparked significant debate. Justice Kirby in his dissenting judgment, criticised the doctrine as outdated, arguing it undermines public confidence in the legal system and unnecessarily limits clients’ rights to redress. Kirby J highlighted that other common law jurisdictions such as England and Canada, had abolished advocates’ immunity, suggesting Australia should follow suit.
- Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16: This case marked a key shift by clarifying that advocates’ immunity does not extend to negligent advice leading to a settlement. The High Court emphasised that immunity only applies when there is a “functional connection” between the legal work and the judicial determination of the case. This decision meant that solicitors could be liable for negligent advice that leads to a negotiated settlement in Court proceedings.
Rationale Behind Advocates’ Immunity
Advocates’ immunity serves several key public policy purposes:
- Finality of Court Decisions: By limiting negligence claims against solicitors, advocates’ immunity supports the finality of judicial decisions, preventing ongoing disputes over past rulings.
- Freedom of Advocacy: This principle ensures that legal practitioners can represent their clients robustly without the fear and inhibition of being sued, allowing them to act in the best interests of their clients.
- Public Interest: By protecting the role of legal practitioners, advocates’ immunity upholds the integrity of the legal process and the lawyers paramount duty to the Court, fostering trust in court proceedings and the judicial system as a whole.
Exceptions and Limitations to Advocates’ Immunity
While advocates’ immunity shields legal professionals in certain situations, it is not absolute. The following are key exceptions where advocates’ immunity does not apply:
- Dishonesty or Fraud: Immunity does not protect legal practitioners from claims involving fraud or dishonesty. If a lawyer intentionally deceives their client or the court, they can be held liable for their actions, regardless of whether their conduct was related to court proceedings. Example: The solicitor intentionally provides false or misleading statements to the court, knowing it would improve the chances of winning the case.
- Work Outside the Scope of Advocacy: Advocates’ immunity typically applies only to work directly related to court advocacy. If a solicitor provides legal advice or draft documents unrelated to court proceedings, they may be liable for negligence under general professional negligence principles. Example: A client seeks advice on a business contract and the solicitor negligently drafts the contract, leading to financial loss for the client. Since the work was unrelated to court proceedings and did not involve advocacy, the solicitor is liable for negligence.
- Out of Court Settlements: As established in Attwells v Jackson Lalic Lawyers Pty Ltd [2016], advocates’ immunity does not extend to negligent advice that leads to a settlement agreement. If a solicitor provides poor advice that influences a client to settle a case, the client may pursue a negligence claim. Example: A client seeks legal advice on the strength of their case, and the solicitor mistakenly tells them that they have poor prospects of succeeding. As a result, the client agrees to settle for a much lower amount than they were entitled to. Since the advice led to a settlement, which does not involve a court decision, advocates’ immunity does not apply, and the solicitor may be liable for negligence.
- Advice Given Outside of Court Proceedings: Immunity applies to in-court conduct, including advocacy, cross-examination, and submissions. However, negligent advice provided in consultations or written communications, outside of court, may be the subject of a negligence claim. Example: A lawyer provides advice to a client about the legal consequences of getting a divorce, but the lawyer fails to mention an important detail about property division, leading to the client losing out on assets. Since this advice was not connected to a court case, advocates’ immunity would not apply, and the lawyer could be held liable for negligence.
- Non-Advocacy Administrative Acts: Actions that are purely administrative and not advocacy-related, such as failing to meet filing deadlines or similar procedural errors, are generally not protected by advocates’ immunity. Example: A solicitor misses a court filing deadline, which results in the client’s case being dismissed. The client suffers harm due to the mistake, and since the error is purely administrative, advocates’ immunity does not protect the solicitor.
- Collateral Attacks on Court Orders: Although advocates’ immunity is designed to prevent attacks on judicial decisions through negligence claims, it does not protect legal practitioners involved in fraudulent conduct or collusion that leads to a court order. Example: A solicitor works with a client to fabricate evidence in order to secure a favorable ruling from the court. Once the fraud is discovered, the client attempts to challenge the court order. In this case, advocates’ immunity would not protect the solicitor, as the solicitor’s conduct was dishonest and involved collusion to influence the outcome of the case.
Current Challenges to Advocates’ Immunity
Advocates’ immunity, although an established principle in Australian law, has faced increasing challenges in recent years. These challenges largely stem from evolving views on accountability in the legal profession, particularly in light of modern legal expectations and the public’s growing demand for transparency and fairness in all sectors, including the legal profession.
Several factors have contributed to this scrutiny:
- Evolving Legal Standards: Modern legal systems place a high emphasis on ensuring that clients have access to justice, even when they believe their lawyer has acted negligently. There is growing concern that the immunity prevents clients from seeking redress when genuine negligence occurs, potentially undermining public confidence in the legal system.
- Public Criticism: Critics argue that advocates’ immunity disproportionately protects lawyers from legitimate claims of negligence, which can be particularly damaging when clients suffer from poor legal representation. As society increasingly values individual rights and accountability, many see advocates’ immunity as an outdated and unfair shield for legal professionals, especially when other professionals are held accountable for their actions.
- International Trends: Other common law jurisdictions, including England, Canada, and New Zealand, have moved away from or significantly limited the application of advocates’ immunity. In light of these developments, there has been increasing pressure within Australia to reconsider the scope of the immunity to align with these global shifts
In Summary
While advocates’ immunity is designed to protect legal professionals engaged in court-related work, these exceptions and limitations ensure that clients have recourse when negligence occurs outside the scope of courtroom conduct and preparatory work associated with the conduct of the case in Court. Lawyers remain accountable for their actions in matters unrelated to court work, administrative tasks, or where misconduct occurs. If you’re unsure whether advocates’ immunity applies to your case, it’s important to consult a legal professional for tailored advice.
DISCLAIMER
This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.
