Advocate's Immunity and Case Laws

The provided assignment focuses on the topic of advocate's immunity, a principle that protects lawyers from liability for their professional actions. The document includes case laws such as D'Orta-Ekenaike v Victoria Legal Aid [2005], Giannarelli v Wraith [1988], and Attwells v Jackson Lalic Lawyers Pty Ltd [2016]. These cases are analyzed to understand the concept of advocate's immunity, its implications, and the challenges it poses. The assignment also references articles and papers from reputable sources such as the Law Society Journal and Commercial Law Quarterly, providing a comprehensive understanding of this complex legal topic.

LEGAL ETHICS:
ADVOCATE
IMMUNITY

Table of Contents
LEGAL ETHICS: ADVOCATE IMMUNITY...............................................................................1
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
CONCLUSION................................................................................................................................3
REFERENCES................................................................................................................................4

INTRODUCTION
Advocates plays an important role in understanding arguing in courts on the legal issues
being faced by the clients. Advocate's immunity protects the rights of advocates acting as a
barrister or solicitor from charge of negligence related to courtroom litigation (What is
Advocate's Immunity, 2014). According to the given scenario, X Corporation Pty. Ltd. has sued
Legal Eagle on the grounds of negligence, being conducted by the barrister at the time of
litigation. The report discusses about various case laws which are close to the problem faced by
both the parties. Moreover, various aspects of advocate's immunity are also discussed. Further, in
the end, advice has been provided to both the parties based on the concept of advocate's
immunity.
MAIN BODY
According to the law of Australia, the doctrine of advocate's immunity provides
protection to the advocates against any claim arising based on the conduct of litigation. The party
involved is not allowed to sue the lawyer based upon work performed by him that led to affect
the decision. It has been assumed that the lawyers are under lot of stress and the omission or
negligence performed by them is unintentional (Bartlett and et.al., 2017). Many times, they are
required to take on spot decision therefore, they have the right to enjoy the immunity. It is the
powerful that has been enjoyed the lawyers to Australia even when the advocacy immunity has
been abolished by various countries including New Zealand, Canada and United Kingdom. The
rule of advocates' immunity is relevant and confirmed by the high court of Australia after its
decision on the case D'Orta-Ekenaike v Victoria Legal Aid in 20051. However, doctrine of
advocate's immunity does not apply where negligent legal advices are out of court room to a
client for settlement. The provision prevents unhappy clients to sue his lawyer over his conduct
of litigation. The purpose is to avoid re litigation for which court has already given a verdict.
Critics argued that the lawyers have got this immunity but it is not enjoyed by any other
profession. The immunity does not safeguard the rights of client and does not provide any
remedy of negligent advice given to them. The provision is also misused by many lawyers
1 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
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practising in Australia as they do not give proper time and advices to their client which leaves
them unhappy and unsatisfied2.
According to the given case scenario, Corporation Pty ltd. had to file allegations on an
employee for discrepancy in the time sheet being provided by him. Legal Eagle was hired as a
barrister to make a brief of the case. Based on his understanding, Legal Eagle pleaded for two
cause of action- fraud and misleading or deceptive conduct. In the verdict of the judgement, it
was fairly stated that there are no sufficient evidences to prove fraud or deceptive conduct of the
employee (Hughes and et.al., 2011). Legal Eagle would have brief the case on the grounds of
breach of contract or negligence in order to win the case. Hearing the judgement, Corporation
Pty. Ltd. sue the barrister for not including breach of contract or negligence in the statement.
Legal Eagle may or may not get the advocate's immunity if the matter is heard by the current
high court of Australia.
As an advocate, the following duties are played:
 To act in the interest of the client
 To act within the authority's scope
 To perform confidentiality of instructions (Emmett and et. al., 2016).
 Avoid conflicts of interest
Referring the case law of Giannarelli v Wraith [High Court Australia] and as per the
judgement of the high court on the stated case, the court held that the lawyer is not liable for
negligence leading to affect the decision in the end (Parker and Evans, 2013)3. The law of
immunity will apply on lawyer acting as an advocate or a solicitor. In the end Giannarelli was
not held responsible for negligence in the case based upon advocate's immunity. Generally, the
judgement of barrister is not considered as negligence until and unless the barrister was
communicated everything and error have been made intentionally (Evans, and et. al., 2014).
Immunity to the advocates have been provided to finalize the verdict made by the court and
restrict the parties from re opening the case unless and until some fresh evidence have been
found by any of the parties involved. Also, in the cited case of Rees v Sinclair in New Zealand,
Ree, himself being a retired lawyer claimed that Sinclair has handled his case negligently (High
2 Cameron, M., and et. al., 2016. Risk: No compromise on advocate's immunity. LSJ: Law Society of NSW
Journal. (23). p.72.
3 Giannarelli v Wraith [1988] HCA 52; 165 CLR 543
2

court reconsiders barristers' immunity, 2003)4 . However, verdict by the court was taken under
the provision of advocate's immunity and declared him innocent.
Referring the case of D'Orta- Ekenaike v Victoria legal Aid, whose verdict was given by
the high court of Australia stated that practitioner is not guilty (Stobbs, 2014)5. D'Orta was
charged for rape and lost the case in first trial sentenced to jail for three years. Victoria Legal
Aid, however, appealed for retrial on the grounds that the judge has failed to give proper
direction to the case. The evidence of retrial was not admitted and D'Orta was acquitted. Based
upon his, D'Orta claimed that he has suffered loss and damage including loss of income,
psychotic illness, expenses in the appeal, in retrial and civil proceeding. He appealed for actions
to be taken against Victoria Legal Aid (French and et. al., 2016). The court extended immunity to
advocate and took the decisions in the favour of Victoria Legal Aid. The case reflected the sheer
advocate immunity extended to the practitioner.
According to the case of Kendirjian v Lepore, Lepore being a solicitor of Kendirjian,
drop down the offer of settlement without having a word with Lepore6. He filed a case of
negligence and claims that the negotiation offer was dropped by the lawyer without having
discussion with him. The court verdict suggested that advocate's immunity does not extend to
advice the parties about settlement. Hence, Kendirjian will be liable and will not be able to enjoy
advocate's immunity.
Based on the case law, Attwells v Jackson Lalic Lawyers Pty Ltd, Lalic Lawyers Pty7.
Ltd. Being a solicitor, gave negligent advice to Attwells which led to settlement of the case after
the agreement of both the parties. The question arises that whether advocate's immunity extend
to negligent advice which led to settlement of the case. High court decided that the immunity
doesn't extent to negligent settlement even when the settlement is made out with the agreement
of both the parties. As, it is a disadvantageous settlement, the advocate's immunity does not
apply on Jackson Lalic Lawyers Pty Ltd.
Australian courts have already been loaded with various cases, in this context, it gets
difficult for them to reopen the cases which are based on negligence of the lawyers. To make the
4 Rees v Sinclair - [1974] 1 NZLR 180
5 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
6 Kendirjian v Lepore [2017] hca 13 Case Number: S170/2016
7 Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; 90 ALJR 572; 331 ALR 1
3

procedure easy, the parties are not allowed to sue their practitioner until and unless fresh
evidence have been found by the parties regarding the case (Haller, and et. al., 2014). However,
the law gives immunity to the lawyers but leaves the client without a remedy. Australia is the
only country preferring to preserve the rights of the lawyers. Various decisions are taken in
favour of advocate's and the scope of immunity is rather broad in Australia in comparison to UK.
However, in case of UK, it has been found that various lawyers are involved in
negligence to gain personal interest. UK, House of lords have decided to abolish the law of
advocates' immunity. Referring to the case of Rees and Sincliar, the decision was taken in favour
of the solicitor since, it came in the scope of immunity but this doesn't happen in case of
Kendrijan v Lepore. As in the case of Rondel v Worsely, when the decision was taken, it came
under the immunity area but due to evolved scope it has been asked to reconsider and reopen the
case. Rees v Sinclair in New Zealand, Ree, himself being a retired lawyer claimed that Sinclair
has handled his case negligently which can also go for reopen.
Barristers and Solicitors are no longer immunised from being sued in United Kingdom, if
negligence have taken place from their side. The verdict by the court was based on cases such as,
Arthur J S Hall and Co, where the advocate forced the party to involve in expensive and lengthy
litigation when the advocate could settle the case between the parties8. Due to increased
negligence in the case where the advocates were giving advices based on their own personal
gain, this decision was taken by the court.
A comparative analysis based on the law of Advocates' immunity in UK and Australia:
Factors United Kingdom Australia
Does Immunity exist? The Immunity used to exist in
UK , Rondel v Worsley was
the case when immunity was
given to the solicitor9.
The immunity exist in
Australia. Various decision
based on advocates' immunity
were taken by High Court of
Australia, such as, Giannarelli
v Wraith where the court took
decision in the favour of the
advocate considering
8 Arthur Hall v Simons [2000] 3 WLR 543 House of Lords
9 Rondel v Worsely [1967] 3 WLR 1666 House of Lords
4

advocates' immunity10.
Scope The scope of immunity is wide
where various factors where
considered while taking
decision in favour of or in
against of the advocate. It
doesn't apply on interlocutory
decision or out of court
settlement made by the parties.
As the immunity still exist, the
court of Australia has decided
that Advocate's immunity does
nit extent to functional and
intimate connection with the
conduct of the case. The same
happened in the case of
Attwells v Jackson Lalic
Lawyers Pty Ltd, where
immunity wqas not given to
the advocate.
Scope (Drafting and pleading) Immunity is not directly
provided to the advocate's. The
party can sue the advocate on
various grounds and it
negligence is out of the
immunity area then the
pleading and proceeding are
initiated. Citing the case,
Rondel v Worsely decision
might change due to change in
scope of perception.
The case one's closed are not
allowed to get reopened in
Australia. It is also required to
have more evidences in order
to reopen the case. The
example is the case of Saif Ali
v Sydney Mitchell where
decision was in favour of
solicitor but due to evolved
perception it has been asked to
reopen the case11.
Does it still exist The law has been abolished
from UK after some negligent
case handling of advocates.
It exists in some parts of
Australia.
10 Giannarelli v Wraith [1988] HCA 52; 165 CLR 543
11 Saif Ali v Sydney Mitchell [1978] HL
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Based on the cases being referred above, it can be inferred that Legal Eagle will be
immune from the suit for not including breach of contract or negligence in the statement that he
drafted. X Corporation Pty. Ltd. Have no right sue Legal Eagle on these grounds since, the steps
being taken by the barrister were according to the brief that has been provided by the company.
Also, all the ethical aspects were considered by the barrister while making the proposed draft for
X Corporation Pty. Ltd. It has to be noted that the barrister also worked in his full competence to
achieve the interest of client. Advocate immunity will come to rescue for Legal Eagle as the
concept provides immunity against negligence to the advocates acting as a barrister or solicitor
for any client. Hence, Legal Eagle is not liable for any negligence in conduction of the case of X
Corporation Pvt. Ltd. Also, if the case is filed by X Corporation Pty. Ltd, the company will not
able to prove Legal Eagle as negligent under the provision of advocate's immunity.
CONCLUSION
From the above report, it can be articulated that advocate's immunity plays an important
concept which protect the rights of the lawyers against claim of negligence. If any client sue a
lawyer on the grounds of negligent handling of the case, the concept comes to rescue the
advocates community. Few case laws, such as, D'Orta-Ekenaike v Victoria Legal Aid,
Giannarelli v Wraith, Rees v Sinclair12 have been referred while giving advice to Legal Eagle.
Further, it has been directed that the company will not be able to succeed and Legal eagle will
get immune under the provision of Advocate's Immunity.
12
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REFERENCES
Bartlett, F. and et.al., 2017. Making lawyers pay for malpractice in court: skirting advocates’
immunity in Australia. International Journal of the Legal Profession. 24 (12). pp.109-123.
Cameron, M. and et.al., 2016. Risk: No compromise on advocate's immunity. LSJ: Law Society
of NSW Journal. (23). p.72.
Emmett, A. and et.al., 2016. Principles relating to advocate's immunity following Attwells v
Jackson Lawyers and Kendirjian v Lepore. Commercial Law Quarterly: The Journal of the
Commercial Law Association of Australia. 30(4). p.10.
Evans, A. and et.al., 2014. The Good Lawyer. Cambridge University Press.
French, J. and et.al., 2016. Ethics and practice: Is this the final test for advocates' immunity?.
Bulletin (Law Society of South Australia). 38(2). p.26.
Haller, L. R. and et.al., 2014. Playing Fair: When Advocates' Immunity is Out of Court. Browser
Download This Paper.
Hughes, K. and et.al., 2011. The abolition of expert witness immunity. The Cambridge Law
Journal. 70(03). pp.516-518.
Parker, C. and Evans, A., 2013. Inside lawyers' ethics. Cambridge University Press.
Stobbs, N., 2014. Duty to the court and the administration of justice.Precedent (Sydney, NSW).
(123). p.16.
Online
What is Advocate's Immunity. 2014. [Online]. Available through
<http://nswcourts.com.au/articles/what-is-advocates-immunity/> [Accessed on 19th June
2017].
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High court reconsiders barristers' immunity. 2003. [Online]. Available through
<http://www.internationallawoffice.com/Newsletters/Litigation/New-Zealand/Buddle-
Findlay-/High-Court-Reconsiders-Barristers-Immunity> [Accessed o 19th June 2017]
Cases Laws
D’Orta-Ekenaike v Victoria Legal Aid [2005]
Giannarelli v Wraith [1988]
Rees v Sinclair - [1974] 1 NZLR 180
kendirjian v lepore [2017]
Attwells v Jackson Lalic Lawyers Pty Ltd [2016]
Arthur Hall v Simons [2000]
Rondel v Worsely [1967]
Saif Ali v Sydney Mitchell [1978]
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