An upcoming High Court case, due to be argued in Canberra this week, will tackle the question of the so-called “advocates’ immunity” in Australia, that is, whether a client may sue their lawyer for negligent actions or omissions that are intimately connected with the conduct of a case in court. Advocates’ immunity, as well as the immunities for judges, witnesses, and jurors, is part of the common law, which means that it can be modified or removed by the High Court.

This article will examine the current state of the law regarding advocates’ immunity in Australia, and the rule of law considerations for and against its retention.

Advocates’ immunity

As the law currently stands in Australia, the broadly accepted position is that lawyers may not be sued for negligent actions or omissions done in the conduct of a case in court, or done out of court, but which are intimately connected with the conduct of a case in court.

There are three important points to make about this immunity.

First, advocates’ immunity is so called for a crucial reason: the focus of the immunity is on advocates; that is, on court work, not general legal work.

In other words, solicitors are not immune from professional negligence claims concerning legal work that is not connected to the conduct of a case in court. Indeed, there have been plenty of instances of solicitors being sued – and found liable – for professional negligence. So advocates’ immunity does not function as some kind of general shield against professional negligence claims for the whole legal profession.

Secondly, the immunity is an “immunity from suit”, rather than an “immunity from liability”. That is, it is not an immunity that protects lawyers for the work described above, in the event that such work is found, by a court, to be negligent. Rather, the lawyers cannot even be sued in the first place. The case will be thrown out of court at a preliminary stage.

Finally, it is also important to note that advocates’ immunity is not the only immunity found in court proceedings.

As Justice Starke of the High Court noted in Cabassi v Vila [1940] HCA 41:

No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates, or parties in respect of words used by them in the course of such proceedings, or against jurors in respect of their verdict.

As His Honour was pointing out, judges, witnesses, and jurors are also all immune from suit, not just lawyers.

These three considerations point to the general foundation for advocates’ immunity: the preservation of the integrity of the judicial system.

In the most recent High Court case about advocates’ immunity, D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, Chief Justice Gleeson, and Justices Gummow, Hayne, and Heydon found that:

The central justification for advocates’ immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances.

This is known as the “principle of finality”. Their Honours continued:

If an exception to that tenet were to be created by abolishing [advocates’] immunity, a peculiar type of re-litigation would arise. There would be re-litigation of a controversy (already determined) as a result of what had happened during, or in preparation for, the hearing that had been designed to quell that controversy.

Moreover, it would be re-litigation of a skewed and limited kind. No argument was advanced to this Court urging the abolition of judicial or witness immunity. If those immunities remain, it follows that the re-litigation could not and would not examine the contribution of judge or witness to the events complained of, only the contribution of the advocate.

The argument goes that, in cases about advocates’ negligence in court proceedings, courts would inevitably be involved in second-guessing decisions made by other courts; in other words, if the advocate had conducted the case better, what might have been the outcome?

If this happened outside of the strictly defined appeals process, say supporters of advocates’ immunity, it would undermine the integrity of, and the public confidence in, the judicial system.

The case due to be argued before the High Court this week will provide an opportunity to reaffirm, modify, or abolish advocates’ immunity in Australia. Since the immunity does not stem from statute, but is a common law immunity, it is up to the Court to decide its future.

Abolishing or modifying the immunity

There are many rule of law reasons why the High Court might consider abolishing or modifying advocates’ immunity.

First, the idea that lawyers may – albeit, in restricted circumstances – be exempt from the rules of professional negligence that govern other professions is an uncomfortable one.

Such an exemption may tend to undermine public confidence in the legal profession, and, by extension, the legal system as a whole; it may be viewed as lawyers looking out for their own. This is even more so when professional negligence standards are applied to professionals whose jobs are at least as complex and exacting as a trial lawyer’s. Few would argue, for example, that a medical doctor should receive immunity from professional negligence proceedings because of the complexity of their job.

Secondly, the exemption of lawyers may result in clients suffering unjust outcomes, and being denied a remedy.

In circumstances where the negligence of a lawyer in a trial situation has caused serious loss and damage to a client, one might consider whether philosophical appeals to the “principle of finality” are an adequate reason to deprive that client of concrete recompense.

Thirdly, critics of advocates’ immunity say that it is not necessary to safeguard the integrity of the judicial system.

In making this argument, they point to the other common law jurisdictions that have abolished advocates’ immunity in recent years – including New Zealand and the United Kingdom – or that have never had it from the outset – such as Canada and the United States. These jurisdictions do not seem to have experienced a flood of trial-related negligence claims, undermining the principle of finality, and wreaking havoc on the integrity of their respective judicial systems.

Other powers of courts, say these critics, are enough to protect us against whatever evils advocates’ immunity is supposed to prevent. These powers include rules like res judicata, issue estoppel, and the inherent power of superior courts to prevent abuse of process.

Retaining the immunity

Despite these criticisms, there are also rule of law reasons that may weigh in favour of retaining the immunity in Australia.

The first, and most obvious, is that it was only a decade ago that the High Court overwhelmingly (6:1) upheld the continued existence of advocates’ immunity in Australia, in D’Orta-Ekenaike.

Although tradition alone is not a sufficient reason to retain the immunity in the face of persuasive arguments, there is much to be said for consistency and continuity in law. Without clear reasons as to why the decision in D’Orta was manifestly wrong, or without some indication that there has been a change in the circumstances relevant to advocates’ immunity in Australia, the Court might rightly be cautious about doing an about-face.

However, the biggest rule of law consideration that may weigh in favour of retaining advocates’ immunity is that advanced by the plurality in D’Orta: that the immunity is necessary to prevent re-litigation of settled controversies.

This principle of finality is, as the plurality said, a “fundamental and pervading tenet of the judicial system”, and undermining it may have the very effect that critics of advocates’ immunity rail against: undermining public confidence in the legal system.

Were the public to be exposed to judicial findings about the correctness or reasonableness of legal advice related to court proceedings, they would inevitably be exposed, goes the argument, to second-guessing about other judicial findings, or, what is worse, about other judges.

Imagine, for example, that a lawyer advises a client that a particular judge is not usually sympathetic to the type of claim that the client is making. The lawyer advises settling the dispute. The client decides to follow the advice.

Later, another lawyer tells them that that judge is actually very sympathetic to their type of claim, and that they could have received a judgment much more favourable than the terms of their settlement. The client decides to sue their first lawyer for negligence.

Supporters of advocates’ immunity maintain that, in order for a court to adequately inquire into whether the first lawyer’s advice was negligent, the court would need to inquire into how reasonable it was for the lawyer to suggest that the previous judge would not be sympathetic to the client’s claims.

This sort of inquiry – into the characteristics of a particular judge – would necessarily be destructive of public confidence in that judge, if not the entire judicial system.

Immunity and the rule of law

These arguments raise many interesting rule of law issues relevant the integrity of, and public confidence, in the legal system, and the consistency and continuity of law.

Many, if not all, of them will be on display in Canberra this week, and the High Court will have to decide how to balance the competing considerations.

— William Shrubb

Further reading

Attwells v Jackson Lalic Lawyers‘, the case being argued this week

D’Orta-Ekenaike v Victorian Legal Aid‘, High Court of Australia

Should you be able to sue your lawyer if you think they’ve done a bad job?‘, SMH, Greg Walsh