The House of Lords and the New Zealand Court of Appeal have recently recognised the futility in upholding a common law immunity for legal advocates.
Sydney Law School Legal Studies Research Paper No. 07/49
July 2007
Australia’s anachronistic advocates’ immunity: Lessons from comparative tort law Thalia Anthony
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Australia’s anachronistic advocates’ immunity: Lessons from comparative tort law Thalia Anthony* The House of Lords and the New Zealand Court of Appeal have recently recognised the futility in upholding a common law immunity for legal advocates. However, the High Court of Australia in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 reasserted Australia’s need to uphold this archaic privilege for the legal profession, ruling out lessons from comparable jurisdictions. The basis of this decision was finality in the trial process. However, the experiences of England, Canada and the United States demonstrate how finality can be preserved without immunity.
INTRODUCTION In Canada and the United States of America, the attorney’s election to honour the public obligation must be shown to have been so manifestly erroneous that the act or omission was one which no prudent advocate would have entertained. The United States of America, and increasingly Canada, are what is sometimes characterised as “litigious” societies. Yet the sky has not fallen in those jurisdictions on account of the lack of forensic[1] immunity; indeed it is difficult to discern even the formation of storm clouds.2
In recent years a judicial wave has washed away legal advocates’ common law immunity in jurisdictions comparable with that of Australia. English and New Zealand courts abrogated immunity in 2000 and 2005-2006 respectively in order to create public confidence in the legal system.3 In 2005, the Ontario Court of Appeal (Canada) established that advocates are liable for a reasonable standard of care, rather than “egregious error”.4 The superior courts of the United States have consistently maintained that counsel, including advocates appointed by the state since 1979,5 have a duty of care to clients that is not protected by immunity. In 2005 the High Court of Australia anchored advocates’ immunity contrary to the international tide. The decision arose from the case of D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 that involved an acquitted man who attempted to sue his barrister and solicitor for wrong advice that led to his earlier conviction and three years imprisonment. In a strong six-to-one majority, the High Court not only affirmed immunity of advocates from negligence suits, but also extended its scope from in-court to out-of-court immunity, and from barristers’ immunity to instructing solicitors. The court’s chief justification was to protect the public interest by ensuring the finality of trials. The majority (Gleeson CJ, Gummow, Hayne and Heydon JJ) held that abolishing immunity would precipitate parlous re-litigation and undermine the administration of justice (at [31]). Given that Australia’s immunity for advocates presents a range of costs for the profession and the community, the arguments for curial finality need to be compelling.6 The costs of immunity include that it is anomalous to tort liability for other professionals; it does not enforce standards of care for * Lecturer in Law, University of Sydney. The author wishes to thank Ross Anderson and the anonymous referee for their valuable feedback. 1
Also known as “in-court work”.
2
Lai v Chamberlains [2005] NZCA 37 at [140] (Hammond J).
3
Arthur JS Hall (A Firm) v Simons [2002] 1 AC 615; Lai v Chamberlains [2005] NZCA 37. The decision of the New Zealand Court of Appeal was recently upheld by the Supreme Court of New Zealand: Chamberlains v Lai [2006] NZSC 70. 4
Folland v Reardon (2005) 249 DLR (4th) 167. This decision was affirmed in Ristimaki v Cooper (2006) 268 DLR (4th) 155.
5
Ferri v Ackerman 444 US 193 (1979).
6
Hampel G and Clough J, “Abolishing the Advocate’s Immunity from Suit: Reconsidering Giannarelli v Wraith” (2000) 24 MULR 1016 at 1026.
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advocates; it removes relief for wronged clients of advocates; and it derogates from international norms, making it difficult for cross-jurisdictional lawyering. The joint majority decision of the Supreme Court of New Zealand emphasised the anomalous nature of the immunity: In principle, all who undertake to give skilled advice are under a duty to use reasonable care and skill. An immunity which shields legal practitioners from liability for breach of that duty is anomalous. No other professional group is immune from liability for breach of duties of care they owe to those they advise, treat or represent.7
Similarly, the House of Lords decision was described as removing “one of the greatest contradictions at the heart of our system of justice”: “[O]ur courts professed to uphold the highest standards of justice, but if your counsel fell well below the standards … [y]ou had no remedy and no justice.”8 Generally, such concerns for access to justice and equality before the law prevail over concerns for judicial efficiency. This is apparent in Australia’s appellate system, where finality does not reign supreme. Retrials are allowed for the discovery of new evidence, perverse jury verdicts, or, as in D’Orta-Ekenaike, misdirection by the trial judge.9 Nonetheless, this article seeks to assess the majority decision in D’Orta-Ekenaike on its own terms, that is, it tests the cogency of their argument about finality. Accepting that there is a need for finality, this article explores how England, the United States and Canada have secured finality in the absence of immunity. These systems are equally concerned with the principle of finality, as revealed in their reasoning when abolishing immunity, but have confidence that their systems are equipped to cope without immunity. In the United States and Canada, this confidence has long been proven.10 While those countries represent only a small portion of the great majority of countries without immunity – for instance, immunity has never existed in the civil law systems of continental Europe11 – the experience of these adversarial common law systems with similar origins is instructive in predicting what implications might flow for Australia if advocates’ immunity were abandoned.12 This article argues that mechanisms for securing finality in comparable jurisdictions are not unique statutory creatures, but are also in-built in Australia’s common law. They are part and parcel of common law principles of negligence law that are inherent in Australian law, including the standard of care beyond a mere error and the abuse of process doctrine. The comparable common law systems have also developed legal rules organically to respond to the need for finality on a case-by-case basis. This article contends that D’Orta-Ekenaike provided an ideal opportunity to abolish immunity because it was a case where finality was not at stake. Accordingly, the court could have set in motion principles of advocates’ negligence without compromising finality. The facts in D’Orta-Ekenaike did not require re-litigation for the civil case. It was apparent from the criminal appeal that the wrong advice from the advocate had caused the damage. This would be consistent with United States negligence law where civil suits against advocates’ negligence in criminal cases can proceed only where there has been a successful appeal. This “successful appeal requirement” is an additional element in tort law – beyond duty of care, breach, causation and damages – that protects finality, while also allowing wronged clients to apply for tort relief. 7
Chamberlains v Lai [2006] NZSC 70 at [3] (Elias CJ, Gault and Keith JJ).
8
Sims H, “Recent Developments in Litigation Negligence”, Mercantile Professional Negligence Seminars, September 2000, http://www.guildhallchambers.co.uk/Resources/Merc_ProfNeg_Seminar_Reports/PROF_NEG_HS_28_SEPT_00.html#top viewed 9 March 2006. 9
This argument was also made regarding the New Zealand system: Lai v Chamberlains [2005] NZCA 37 at [157] (Hammond J).
10
Hutchinson AC, “The Barrister’s Immunity” (1978) 128 New LJ 144.
11
For a discussion of advocates’ liability in continental Europe, see Hill J, “Litigation and Negligence: A Comparative Study” (1986) 6 OJLS 183. 12 The Canadian experience is especially analogous, given that the structure of its legal profession is akin to that of Australia with a two-tier profession, although in both systems advocacy is a feature of both tiers.
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The traditional immunity debate Advocates for immunity A highly charged debate among legal scholars regarding advocates’ immunity is mirrored in the polarised judgments in D’Orta-Ekenaike, particularly the judicial Punch-and-Judy between McHugh and Kirby JJ. The latter provided the sole dissenting judgment. Jurists who favour immunity often do not take kindly to abolitionists who strike at the heart of their profession. They profess a close knowledge of the fraught machinations of court proceedings. Immunity, proponents argue, ensures that “trials are conducted without avoidable stress and tensions of alarm and fear in those who have a part to play in them”.13 To hold advocates to a duty of care would promote “defensive lawyering”.14 Various premises for immunity have featured in judicial decisions and scholarly debates since the landmark English case of Rondel v Worsley [1969] 1 AC 191, which established the common law policy grounds for immunity. Groves and Derham articulated the scope of the debate in a clarion call to maintain immunity in the lead-up to the D’Orta-Ekenaike decision.15 Their key arguments were that: • advocates’ liability would promote a duty to the client at the expense of advocates’ duty to the court; • advocates’ immunity is analogous with immunity afforded to other participants in legal proceedings (judge, juror and witness);16 • the “cab rank” rule (which ensures barristers indiscriminately accept briefs in their field of expertise) would be compromised by barristers choosing only non-risky clients;17 • other sanctions apply to advocates;18 and • most notably for the authors, immunity controls re-litigation and collateral attacks, which would dismantle curial finality.19 Suits against advocates would involve a rehearing of the issues already determined in the original action. The High Court’s decision to retain immunity in the public interest was based on avoiding such re-litigation. Abolitionists The issues not addressed relate to how liability serves the public interest. “Abolitionists” claim the above reasons do not justify the detriment to the public interest that occurs when members of the legal profession, by virtue of their function, accord special treatment above the ordinary rules of civil liability.20 They refute the veracity of the arguments for immunity by submitting that: • a duty to the court would not give rise to a cause of action;21 • advocates are no different from medical professionals who also accede to the cab-rank rule and also need to make quick decisions under pressure;22 • intra-professional sanctions for barristers do not provide relief for wronged clients; 13 Todd S, “The Liability of the Barrister or Solicitor to the Person He Sues” (1985) 1 PN 86 at 87. However, this reasoning does not foresee the extension of advocates’ immunity in D’Orta-Ekenaike to “instructing solicitors” or to out-of-court advice. 14
Groves M and Derham M, “Should Advocates’ Immunity Continue?” (2004) 28 MULR 80 at 112.
15
Groves and Derham, n 14.
16
Groves and Derham, n 14 at 101, 123. Also see Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System, Report No 89 (1989) at [3.67], http://www.austlii.edu.au/au/other/alrc/publications/reports/89/ ch3.html viewed 12 February 2007. 17
Groves and Derham, n 14 at 105, 107.
18
Groves and Derham, n 14 at 111.
19
Groves and Derham, n 14 at 107, 110.
20
Carey Miller DL, “The Advocate’s Duty to Justice, Where Does It Belong?” (1981) 97 LQR 127 at 138.
21
Brookes S, “Time to Abolish Lawyers’ Immunity from Suit” (1999) 24(4) Alt LJ 175 at 176.
22
Cane P, Tort Law and Economic Interests (2nd ed, Clarendon Press, Oxford, 1996) pp 233-238.
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•
resource and funding deficiencies for government legal services, such as legal aid, would be uncovered through negligence suits;23 and • disciplinary codes of conduct are a form of self-regulation that does not provide a substitute for independent judicial intervention.24 Critics of immunity argue that it hinders optimal risk allocation where the cost of negligence should fall on the professional who can insure against risk, rather than the client.25 Across Australia advocates already pay compulsory professional indemnity insurance,26 and premiums were increased in anticipation of immunity being abolished in D’Orta-Ekenaike.27 Furthermore, holding advocates to a minimum standard of care ensures quality in the provision of legal services by presenting a disincentive to negligent conduct. Prichard observed that exposure to civil liability provides rational actors with an incentive to exercise care, whereas immunity masks “uncompetitive” behaviour.28 The majority’s preoccupation with finality in D’Orta-Ekenaike meant they did not even countenance the benefits of advocates’ liability to the client or profession. Veljanovski and Whelan note that civil liability aligns standards of care with socially desirable goals.29 There are particularly beneficial outcomes for the administration of justice where improving standards would prevent the conviction of an innocent person resulting from the negligence of her or his advocate.30 This article transcends the theoretical debate about the relative merits of immunity versus liability by taking up the mainstay of pro-immunity justifications in Australian law – finality – in light of international experience. In the process, it points to decisions of comparable jurisdictions that have abolished immunity, with particular focus on the means by which they have secured finality without immunity.
Why a comparative study? Since the 1980s, comparative research has been losing ground due to the tendency to conceptualise legal developments within the specific jurisdiction. Parochial studies have been driven by neo-conservative and postmodern thought to displace broad theories of change.31 Accordingly, the law is treated as a function of a local legal framework, rather than informed by values of justice (which are in turn shaped by ideology, sociology and economics) that transgress national boundaries. This approach can be discerned in the reasoning of the High Court, including in D’Orta-Ekenaike. The majority invoke assumptions regarding finality that disregard the fact that the modern advocates’ immunity principle was imported from overseas and that overseas courts have since abandoned immunity without adverse ramifications for finality or otherwise. Their Honours disregarded the changing public policy that has spurred the abolition of immunity overseas, and instead pointed to the specificity of Australia’s statutory regimes and legal professions to dismiss parallels. 23
Branda SJ, “Malpractice” (1980) 13 Akron L Rev 745 at 759.
24
Professional misconduct codes are prescribed in Acts such as the Legal Profession Act 1987 (NSW), s 127, and the Legal Practice Act 1996 (Vic), s 172. A further criticism of removing a duty of care due to the existence of a code is that other professions have codes of conduct that do not eliminate liability: Veljanovski CG and Whelan CJ, “Professional Negligence and the Quality of Legal Services – An Economic Perspective” (1983) 46 Mod L Rev 700 at 702.
25 Zander M, Legal Services for the Community (Temple Smith, London, 1978) p 136; Veljanovski and Whelan, n 24 at 702; Lavinsky LM, “Lawyers’ Liability” in Wilson CH and Phelps JR (eds), Lawyers and Accountants on Trial: Professional Liability (American Bar Association, Chicago, 1975) p 59. 26 Law Council of Australia, Commentary on National Competition Council Community Information Paper: Reform of the Legal Professions, Discussion Paper (September 2000) p 8. 27
Victorian Bar, Annual Report for the Year Ended 30 June 2004, p 55.
28
Prichard RS, “Professional Civil Liability and Continuing Competence” in Klar L (ed), Studies in Canadian Tort Law (Butterworth & Co, Toronto, 1977) p 392. 29
Veljanovski and Whelan, n 24 at 718.
30
Zander, n 25, p 135.
31
See generally Chakrabarty D, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton University Press, Princeton, 2000).
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This article seeks to present a comparative study to show that fear for curial finalisation lacks a logical and empirical spine. Veljanovski and Whelan claim finalisation is grounded in “dubious, empirical assertions about the legal process” that imply the floodgates will be opened to vexatious litigants resulting in open-ended litigation, which is not evident in Canada or the United States where advocates’ immunity has never existed.32 Zander claims that the fact a duty of care owed by advocates is the almost universal norm proves that it is not necessary.33 Comparative studies are particularly valuable with regard to immunity because contemporaneous decisions on this question of law in England and New Zealand provided a diametrically opposed outcome to what has occurred in Australia. In undertaking a 1984 comparison between France and England’s divergent immunity position, and concluding that England’s stance was unjustified, Hill argued that comparisons simply based on internal rules and codes made law a discipline unto itself that isolated it from the impact of social trends.34 Through an analysis of international experience, this article points to how a duty of care can be owed to clients while at the same time securing finality. The common law mechanisms to protect finality overseas include the high onus of proof on the plaintiff to establish the basic tort elements, such as that the advocate fell below a reasonable standard of care and that there was more than a mere error of judgment on the part of the advocate; only allowing negligence suits to be brought after a successful appeal in criminal cases; assessing damages only where there has been a finalisation of loss accrued; and the abuse of process doctrine. Duncan points out that adding finality to the other torts components has made actions in the United States against advocates particularly onerous for the plaintiff.35 In addition, judges in England and New Zealand have pointed to the discretion they have in preventing collateral attacks based on the abuse of process doctrine, which is also incorporated in Australian law. Therefore, given that the modern immunity principle is a product of the common law rather than a statutory construction, comparative analysis can point to common law developments being equally apposite for Australia. This article has a more ambitious agenda of drawing attention to the general utility of comparative law in achieving desirable and informed outcomes for Australia’s legal system. Zweigert and Kötz argue that functionality fails to emphasise that the rules and institutions of foreign legal systems are comparable with one’s own legal system.36 David and Brierley contend that the study of foreign legal systems assists in the understanding of one’s own.37 Hill notes that the detailed examination of a specific issue from a comparative perspective is equally valuable for identifying those aspects of one’s own law which are at variance with the laws of another.38 Where differences exist, it is useful to ask why and whether they should continue to exist. Australia’s immunity as a parochial necessity, which the High Court majority effectively maintains, denies the Australian legal system an opportunity to align itself with international developments which are seen to benefit clients, the legal system and courts. This article endeavours to highlight that the immunity of Australian advocates is a product of dated social norms that temper the rights of plaintiffs and protect the legal profession. The first part of this article points to the development of Australia’s common law immunity as a derivative of English policy concerns, and its recent extension in D’Orta-Ekenaike. It then focuses on why England, New Zealand, Canada and the United States have either done away with immunity or have never found the 32
Veljanovski and Whelan, n 24 at 712.
33
Zander, n 25, p 135.
34
Hill, n 11 at 184.
35
Duncan M, “Criminal Malpractice: A Lawyer’s Holiday” (2003) 37 Ga L Rev 1251 at 1255.
36
Zweigert K and Kötz H, Introduction to Comparative Law (trans T Weir) (3rd ed, Clarendon Press, Oxford, 1998) p 25.
37
David R and Brierley JEC, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law (2nd ed, Free Press, London, 1978) pp 6-8.
38
Hill, n 11 at 183-184.
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need for it. The last section explores how jurisdictions without immunity have been able to achieve finality in their court system and considers the transferability of this outcome to Australian law.39
DEVELOPMENT
OF ADVOCATES’ IMMUNITY IN COMPARABLE JURISDICTIONS
Two common law approaches The rule of law that places a duty of care on professionals, including for advice, ostensibly creates a presumption that advocates would be liable in negligence. This presumption has long formed part of the United States and Canadian law, as well the continental European civil codes. In the United States the law of negligence arose from suits being brought against barristers. Early negligence cases involved the liability of persons who professed competence in certain callings.40 One of these “callings” was that of the attorney, and cases as early as the mid 18th century hold an attorney liable on this basis.41 However, in England, and filtering to New Zealand and Australia, the courts traditionally exempted legal advocates from liability. The first recorded attempt in England to obtain a remedy against a negligent barrister in Fell v Brown (1791) 1 Peake 131; 170 ER 104 failed due to the perception that immunity was part of a “bundle of privileges” that also pertained to the status of judges. Lord Kenyon indicated his distaste for such proceedings (at 132), commenting that as far as he knew this was the first such action against counsel and he hoped it would be the last. Regardless of that posture, blanket immunity was the norm in the Commonwealth until the landmark decision of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. There, the House of Lords established that professionals could owe a duty of care when making representations to clients where there was no contract. Previously, the lack of contractual42 or fiduciary relationships43 with clients cancelled the possibility of bringing an action in tort for financial loss against a barrister.44 In response to Hedley Byrne, the House of Lords in Rondel v Worsley [1969] 1 AC 191 articulated a new policy rationale to uphold advocates’ immunity. As well as the policy grounds outlined above, the Lords justified in-court immunity as protecting the “public interest” in curial finality.45 The divergent approaches of North America and England existed until Arthur JS Hall (A Firm) v Simons [2002] 1 AC 615, which held that immunity was no longer good law in England, and the New Zealand Supreme Court followed suit in Chamberlains v Lai [2006] NZSC 70.
Early developments in Australia Tort litigation against Australian legal practitioners proceeded from the landmark decision of Shaddock & Assocs Pty Ltd v Parramatta City Council (1981) 150 CLR 225. This decision upheld the English position in Hedley Byrne that professionals owe a duty of care. It prompted cases concerning solicitors’ negligent advice to litigate, negligent evaluation of evidence, failure to undertake proper inquiries, undervaluing a client’s claim in settlement negotiations,46 wrongful advice on the 39 Throughout the article, the facts of cases are presented briefly to reveal the significant loss experienced by clients as a result of advocates’ negligence. 40
Winfield PH, “The History of Negligence in Torts” (1926) 42 LQR 184 at 185-190.
41
Pitt v Yalden (1767) 4 Burr 2060; 98 ER 74; Russell v Palmer (1767) 2 Wils KB 325; 95 ER 837.
42
By contrast, in the United States there has always been a contractual relationship between a client and an attorney: Wade JW, “The Attorney’s Liability for Negligence” (1959) 12 Vand L Rev 755 at 756. 43
Maguire v Makaronis (1997) 188 CLR 449.
44
Zipser B, “Barristers and Professional Negligence” (2004) 61 Plaintiff 8 at 12.
45
Rondel v Worsley [1969] 1 AC 191 at 228 (Lord Reid). This policy ground was affirmed in Sutcliffe v Thackrah [1974] AC 727 at 757 (Lord Salmon). 46
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Hodgins v Cantrill (1997) 26 MVR 481.
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jurisdiction to commence personal injury proceedings,47 failure to warn of a limitation period, advice contrary to a line of authorities in that field48 and failure to obtain instructions.49 A case on lawyers’ “in-court” liability was not presented to the High Court until 1988, when the policy position of English and New Zealand courts on immunity was well established.50 Consequently, when the High Court was granted the opportunity to evaluate advocates’ liability in Giannarelli v Wraith (1988) 165 CLR 543, the majority lined their judgments with references to the policy reasoning of Rondel v Worsley and Rees v Sinclair.51 In Giannarelli the applicants, who successfully appealed to the High Court against convictions for perjury, sued barristers who acted for them in the initial conviction. The applicants to the court claimed their barristers failed to object to the tender of evidence in court, which on appeal had not been admitted and their conviction was quashed (at 544). The applicants could not bring a civil suit because Rondel’s immunity was “in tune with what the public interest in the due administration of justice … requires in Australia today” (at 578 (Wilson J)). A number of judges in Giannarelli also took the liberty to contemplate how far immunity extended. Although Giannarelli was a case of “in-court” negligence, Mason CJ and Wilson and Dawson JJ expressed support for the “intimately connected with a trial” test, which emerged in the New Zealand Court of Appeal judgment of Rees v Sinclair [1974] 1 NZLR 18052 and was accepted by the House of Lords in Saif Ali v Sydney Mitchell & Co [1980] AC 198.53 While this test has often been criticised for its ambiguity,54 the High Court nonetheless took a bold step to use the obiter dictum in Giannarelli to provide immunity for the solicitor and barrister who had allegedly given negligent out-of-court advice and failed to take instructions from Mr D’Orta-Ekenaike.
Current state of Australian law: The pre-eminence of finality in D’Orta-Ekenaike In 2005 the High Court was asked in D’Orta-Ekenaike to reconsider Giannarelli55 given that Rondel had been overturned by the House of Lords. In Arthur Hall, discussed below, the Lords declared Rondel’s policy grounds were outdated (at 682 (Lord Steyn)). This development was foreseen in Rondel, in which Lord Reid stated (at 227) that the public interest basis for immunity was not “immutable”.56 Despite a willingness by overseas courts to reassess the policy-based immunity, a six-to-one High Court majority in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 retained Australia’s immunity for advocates. The joint majority judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ 47
MacRae v Stevens [1996] Aust Torts Reports 81-405.
48
Wakim v HIH Casualty & General Insurance Ltd (2001) 111 FCR 58.
49
For a discussion of these cases see Christensen S and Duncan WD, Professional Liability and Property Transactions (Federation Press, Sydney, 2004) pp 227-229. 50
Rondel v Worsley [1969] 1 AC 191; Rees v Sinclair [1974] 1 NZLR 180.
51
See Giannarelli v Wraith (1988) 165 CLR 543 at 555, 572-574 (Mason CJ); at 572 (Wilson J); at 594 (Dawson J); at 579 (Brennan J). 52 McCarthy P described the test as “so intimately connected with the conduct of the cause in court that it can fairly be said to be a preliminary decision affecting the way that cause is to be conducted when it comes to a hearing”: Rees v Sinclair [1974] 1 NZLR 180 at 187. This was endorsed in Giannarelli v Wraith (1988) 165 CLR 543 at 560 (Mason CJ); at 571 (Wilson J); at 596 (Dawson J). 53
The High Court also referred to this authority: Giannarelli v Wraith (1988) 165 CLR 543 at 560 (Mason CJ).
54
The ambiguity was recently noted in Wilson v Carter [2005] NSWSC 1351 at [50] (Rothman J). Prior to D’Orta-Ekenaike, there were indications that the High Court would confine the immunity to a narrow definition of “in-court work”: Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209 at [150] (Kirby J); at [107] (Gaudron J). See also Baker B and Manderson D, “Boland v Yates Reopens Case Against Immunity” (2001) 39(11) Law Soc J 74 at 75-76; Abbott H, Professional Negligence (Law Society of South Australia, 2000) pp 20-21.
55
D’Orta-Ekenaike v Victoria Legal Aid [2004] HCA Trans 118 (20 April 2004) (Mr Moshinsky).
56
Cited in Arthur JS Hall (A Firm) v Simons [2002] 1 AC 615 at 709 (Lord Hope).
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stated that immunity was an essential part of Australian law and the goal of finality that it protects was enshrined in the Constitution (at [32]). The exclusive policy ground that the majority relied on was the finalisation of controversies. This notion was also used to explain why other court functionaries – judges, witnesses, prosecutors and jurors – were not susceptible to an actionable duty of care. This essential endeavour of finality, according to the majority, was wider than the concerns of the particular parties to the controversy. Curial resolution was regarded as vital for the sanctity of the judicial system, as part of the government structure (at [45]): [T]he central justification for the advocate’s immunity is the principle that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances.[57] This is a fundamental and pervading tenet of the judicial system, reflecting the role played by the judicial process in the government of society.
The finality concern was deemed to be relevant to Australia today. The High Court judges reasoned (at [56]) that in England, by contrast, there were statutory reasons to abolish immunity, such as the Human Rights Act 1998 (UK), which was a creature of the European Union. In fact, this Act (not yet in force at the time) was only a minor consideration for Lords Hutton and Millett.58 If the High Court had had the benefit of the New Zealand Court of Appeal decision of Lai v Chamberlains, which was delivered just days before D’Orta-Ekenaike, they may have appreciated the broader policy significance of Arthur Hall, to which the New Zealand court referred widely.59 The New Zealand court did not consider the legislative regime of England as sufficiently distinct when it dispensed with immunity.60 The relevance of the changing policy direction in Arthur Hall was affirmed in 2006 by the Supreme Court of New Zealand in Chamberlains v Lai [2006] NZSC 70, which was the first determination on this issue by New Zealand’s highest court.61 The High Court was also not willing to consider the protections for finality in the United States and Canada where immunity has not existed. They briefly referred to the experience of the United States as a point of contrast (at [60]) (Gleeson CJ, Gummow, Hayne and Heydon JJ). Their Honours claimed that the doctrine of collateral estoppel that protected finality in the United States did not exist in Australia. The High Court did not attach much significance to the rejection of immunity in Canada since its chief decision was presented by a single judge of the Ontario High Court in 1979.62 Nor did it refer to the recent decision by a full Bench of the Ontario Court of Appeal, the Province’s highest court, in Folland v Reardon (2005) 249 DLR (4th) 167 that endorsed the 1979 decision. The High Court’s concern for “finality” privileges a narrow reading of the Constitution over an understanding of the real impact of advocates’ liability on finality, which overseas experience can help demonstrate. The facts in D’Orta-Ekenaike involved a rape charge against the applicant, Ryan D’OrtaEkenaike. He alleged his solicitor from Victoria Legal Aid and barrister had given him wrong advice in relation to his committal hearing. The advice was given at an out-of-court conference two days before and on the day of the committal. The applicant alleged that despite declaring his innocence, he was forced to plead guilty at the committal. He was told that he had no defence, that he would receive a suspended sentence if he pleaded guilty and that, if he pleaded not guilty and was found guilty, he would receive a custodial penalty. Despite changing his plea at trial, D’Orta-Ekenaike’s original plea was led by the prosecution and after the trial judge misdirected the jury on how to use the guilty plea, the applicant was convicted and sentenced to three years imprisonment. The applicant appealed the conviction due to the judge’s misdirection and the conviction was quashed. At the retrial the guilty plea was not tendered and a jury acquitted the applicant. The applicant then sued his barrister and solicitor for exerting “undue pressure and influence” to plead guilty, failing to exercise due care in considering a possible defence, and failing to warn him that 57
Such as appeals: see D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [35].
58
See Arthur JS Hall (A Firm) v Simons [2002] 1 AC 615 at 734 (Lord Hutton); at 753 (Lord Millett).
59
Lai v Chamberlains [2005] NZCA 37 at [124] (McGrath, Glazebrook and O’Regan JJ).
60
Lai v Chamberlains [2005] NZCA 37 at [155] (Hammond J).
61
Chamberlains v Lai [2006] NZSC 70 at [27], [80] (Elias CJ, Gault and Keith JJ).
62
Demarco v Ungaro (1979) 95 DLR (3d) 385.
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a plea of guilty at committal may be admitted as evidence and a plea was not required at the committal proceeding.63 D’Orta-Ekenaike claimed he suffered loss of income and liberty and continued to suffer psychotic illness as a result of the conviction, the imprisonment, the appeal and the drawn-out court proceedings. The court’s finding that immunity applied to these facts represents an expansive approach to immunity and its “intimately connected” test, by extending it to out-of-court advice by barristers and instructing solicitors (not acting as in-court advocates). Accordingly, it is unclear how far “intimately connected” will extend, including whether instances referred to above will still attract liability. Hill stated that the “arbitrary distinctions” surrounding the application of immunity are a “poor testament” to common law developments.64 The significance of Arthur Hall and its policy reasons are woven into the dissenting judgment of Kirby J. His Honour pointed to the unfounded fears for finality based on a cursory attendance to comparable jurisdictions. Kirby J did not explain how overseas legal systems have maintained finality without immunity and the extent to which it was relevant to Australia’s common law system (at [214]-[215]). It is not surprising, then, that his Honour suggested that the abolition of immunity should be left to the legislature (at [290]),65 although an extension of immunity in D’Orta-Ekenaike was unwarranted (at [342]-[343]). Perhaps if Kirby J had acknowledged how overseas courts have struck a balance between providing a duty of care to clients and finality, his Honour may not have delegated common law immunity to the Parliament. A range of common law standards for securing finality can be gleaned from Canada and the United States. This article now turns to the reasons the courts in comparable jurisdictions have sought to hold advocates to an actionable duty of care, before examining how finality has been secured.
REASONS
FOR OVERSEAS DEVELOPMENTS OPPOSING IMMUNITY Generally, overseas courts have recognised that where advocates’ immunity has not existed there have been no deleterious consequences and many benefits of advocates’ liability. This section provides an appraisal of the reasons for which courts in England, New Zealand, Canada and the United States have abrogated immunity. While in Canada and the United States advocates’ liability has always existed, a number of decisions have clarified why it exists and how it does not compromise finality. The recent judgments in England and New Zealand have relied on the reasoning of United States and Canadian courts.
Canada: Demarco v Ungaro Until Rondel, the issue of advocates’ immunity had not reared its head in the Canadian legal system since its formal rejection in Leslie v Ball (1863) 22 UCQB 512. However, subsequent to Rondel and corresponding calls for immunity,66 the Ontario High Court in Demarco v Ungaro (1979) 95 DLR (3d) 385 felt obliged to justify advocates’ liability. The Demarco case arose from a barrister and solicitor failing to lead and adduce evidence to support the defence of the plaintiff. The judgment, which did not adjudicate on the facts as it was only concerned with the preliminary issue of immunity, provided resounding support for advocates owing a duty of care based on the public interest, particularly in ensuring high standards for the legal profession. The single, although authoritative,67 judgment of Krever J expressed concern about the quality of some new lawyers entering the legal 63
The applicant sought to rely upon Rogers v Whitaker (1992) 175 CLR 479.
64
Hill, n 11 at 193. See also Dugdale AM and Stanton KM, Professional Negligence (2nd ed, Butterworths, London, 1989) p 160.
65
For an espousal of this view see Charles JS, “The Immunity of the Advocate” (2003) 23 Aust Bar Rev 220 at 237.
66
Catzman MA, “Immunity – Another Swing of the Pendulum” (1979) 57(2) Can Bar Rev 339 at 345.
67
Although only a single-judge decision by Krever J, it is followed consistently by Canadian courts: see Garrant v Moskal [1985] 6 WWR 31; M Hodge & Sons Ltd v Monaghan (1985) 51 Nfld & PEIR 173; Sherman v Ward [1998] 10 WWR 765. It is also cited with authority by legal scholars: Potter S, “The Barrister Immunity Rule: The Canadian Perspective”, paper presented at the 13th Commonwealth Law Conference, Melbourne, 13-17 April 2003, p 11, http://www.liv.asn.au/conferences/ submit_paper.html viewed 2 April 2005.
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profession, often without adequate training and supervision by more experienced and competent counsel. Those clients who suffered loss at the hands of such negligent legal representation were entitled to compensation (at 405). Since most Canadian lawyers were required to carry liability insurance, any claims were more likely to be borne by insurers (at 405). Furthermore, there was no evidence that liability in negligence had distracted Canadian advocates from their duty to the court (at 396-397). Therefore, Krever J held (at 405) that there was no basis for the policy reasoning in Rondel: Public policy and public interest do not exist in a vacuum. They must be examined against the background of a host of sociological facts of the society concerned. In the light of recent developments in the law of professional negligence and the rising incidence of “malpractice” actions against physicians (and especially surgeons who may be thought to be to physicians what barristers are to solicitors), I do not believe that enlightened, non-legally trained members of the community would agree with me if I were to hold that the public interest requires that litigation lawyers be immune from actions of negligence.
In terms of finality, Krever J claimed the empirical evidence in Canada proved that there was the opposite to a rush of suits against advocates. Since immunity was formally annulled in 1863 there was no reported case of a barrister being sued for negligence that required a retrial (at 402). Canadian scholars in the lead-up to this judgment also had warned against Rondel being applied to Canada as there was no alarming increase in legal malpractice suits or ongoing retrial of lawsuits arising from the few actions launched against lawyers.68 Since Demarco, the lack of cases against barristers prompted the Ontario High Court in 2005 to reduce the “egregious” standard of care to a reasonable standard.69
England: Arthur JS Hall v Simons The powerful reasoning of Krever J was echoed by the House of Lords in Arthur JS Hall (A Firm) v Simons [2002] 1 AC 615, which abolished English immunity in 2000. Lord Hutton claimed there was “’much force” in Krever J’s policy reasoning that conjoined public interest with changing social factors (at 728). The Lords felt Rondel was founded on legitimate policy concerns for its time, but the circumstances had since changed, such that public interest no longer authorised the retention of immunity. The trend in the law of negligence since Rondel was to protect consumers of services and ensure that every wrong attracted a remedy (at 671, 674 (Lord Bingham); at 682 (Lord Steyn)). Accordingly, the expectation in our modern “consumer culture” was that those providing professional services should carry out those services to a high standard and should be liable if they perform those services in a negligent manner.70 A significant feature of the commercialisation of the legal profession was the emergence of compulsory insurance cover for lawyers in England, which did not exist at the time of the 1967 decision of Rondel (at 738 (Lord Hobhouse)). Due to the lack of rigorous policy grounds for immunity, including those expounded in Giannarelli (which the Lords thoroughly considered) (at 636 (Lord Bingham); at 715 (Lord Hope)), the exception in relation to advocates could only be conceived as “protecting one’s own” (at 729 (Lord Hutton)). The House of Lords had confidence that its courts could cope without immunity. The Lords pointed to the long history of advocates’ liability in Canada, the United States and Singapore as proof that finality could be sustained without immunity (at 693 (Lord Hoffmann); at 630 (Lord Bingham)). Lord Steyn regarded fears expressed in Rondel that the “actions in negligence against barristers would tend to undermine the public interest” as “unnecessarily pessimistic”, as demonstrated by the “Canadian empirically tested experience” (at 681). The Lords considered that the courts can strike out claims without a real chance of success to prevent excessive re-litigation, which will be considered further below. Moreover, the Lords noted that one of the strongest arguments for maintaining the immunity was advocates’ duty to the court; however, they acknowledged that there was no evidence that this duty had been compromised in countries without the immunity, such as the United States, 68
Linden AM, Canadian Negligence Law (Butterworths, Toronto, 1972) p 42.
69
Folland v Reardon (2005) 249 DLR (4th) 167.
70
This reasoning resonates with the argument by Madden that immunity is in breach of protections under the Fair Trading Act 1987 (NSW), s 42: Madden B, “Immunity of Advocates from Suits for Negligence” (2000) 42 Plaintiff 26 at 28.
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Canada and the European Union (at 680-681 (Lord Steyn)). Lord Steyn stated that no comparative data had been considered by the House of Lords when it decided Rondel (at 681). The Lords’ judgment ruled on three concurrent appeals against advocates’ negligence in relation to civil trials. The solicitors and barristers gave negligent advice for settlements, including on the eve and day of the trial. The applicants claimed damages for failing to encourage settlement earlier, resulting in enormous costs (paid to the law firms) in the lead-up to the trial. Aside from questioning the veracity of the immunity principle, the Lords established that Rondel’s immunity did not protect solicitors not acting as advocates (as in D’Orta-Ekenaike). The Lords unanimously overruled immunity from negligence suits for acts concerned with the conduct of civil litigation, and a majority held that this should also be extended to criminal litigation. Three dissenting Lords (at 717 (Lord Hope); at 730 (Lord Hutton); at 746-749 (Lord Hobhouse)) felt that there should be an exception to liability for criminal proceedings, due to the greater need for expedient trials and the “independent judgment” of advocates. However, all the Lords (at 728-729) pointed to the problematic nature of immunity because it drew arbitrary distinctions between out-of-court and in-court work (which manifests in the shifting definitions in D’Orta-Ekenaike). With this concern in mind, the majority determined that maintaining immunity for criminal proceedings would draw further artificial lines that would not serve the public interest (at 752 (Lord Millett)): It would mean that a party would have a remedy if the incompetence of his counsel deprived him of compensation for (say) breach of contract or unfair dismissal, but not if it led to his imprisonment for a crime he did not commit.
New Zealand: Lai v Chamberlains; Chamberlains v Lai When the New Zealand Court of Appeal – the court that had originally endorsed Rondel’s immunity in Rees v Sinclair in 1974 – was presented with the case of Lai v Chamberlains, it produced a judgment sensitive to the position in Arthur Hall: see Lai v Chamberlains [2005] NZCA 37.71 The four-to-one majority72 abolished advocates’ immunity, at least in relation to civil cases, in 2005.73 The Lais claimed that the barrister who represented them wrongly made concessions that resulted in a judgment being entered against them personally, rather than against their company. Subsequently, they sued the firm for damages based on the negligent advice and sought to have immunity struck out. The reasons for abolition, enunciated in the majority judgment by Hammond J,74 were based on policy concerns for applying the rule of law to advocates and improving professional standards (at [181]). Although justice was of greater concern than finality to the New Zealand Court of Appeal, Hammond J also scrutinised the finality argument to find that it lacked substance. His Honour found that jurisdictions without immunity did not suffer detriment to finality (at [140]). Further, his Honour was confident that the courts had the capacity to prevent unnecessary re-litigation by using their discretion to decline frivolous and unmeritorious claims and by enforcing the abuse of process doctrine (at [156]). Hammond J concluded that, with the disappearance of immunity, common law safeguards for finality would “take place on the sort of incremental basis which is the usual method of the common law” (at [156]). When the Supreme Court of New Zealand reviewed the immunity in 2006, it unanimously upheld the Court of Appeal’s decision to “strike out” immunity: see Chamberlains v Lai [2006] NZSC 70 at [96] (Elias CJ, Gault and Keith JJ). The joint majority judgment was primarily based on policy concerns of access to the courts and the rule of law (at [1], [94]). However, the Supreme Court also gave close attention to the issue of finality in light of D’Orta-Ekenaike. The joint majority held that 71
Lai v Chamberlains [2005] NZCA 37 at [124] (McGrath, Glazebrook and O’Regan JJ).
72
Anderson P dissenting.
73
In relation to criminal proceedings, Hammond J stated, “I consider there is considerable force in the views taken in the majority judgments in Arthur Hall on this issue. However, it is not, strictly speaking, necessary to deal with this point now, and we did not hear submissions from counsel, or for instance, the Crown and the Criminal Bar Association on this issue. It is therefore appropriate to leave this issue to another day, for such future consideration as it may require”: Lai v Chamberlains [2005] NZCA 37 at [191]. 74
McGrath, Glazebrook and O’Regan JJ concurring: Lai v Chamberlains [2005] NZCA 37 at [124]-[125].
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the High Court of Australia had recast the justification for immunity in terms of finality ([52], [55]). The Supreme Court asked ([58]), “Does the need to promote finality in litigation provide justification for the immunity?” It answered with a resounding “no”, for both civil and criminal cases (at [69]).75 The Supreme Court pointed to the importance of finality, but claimed that immunity was a “disproportionate response” (at [72]). The correct response is to address losses arising from liability “on the basis of principle, rather than by blanket immunity” (at [76]). The joint majority (at [76]) quoted Lord Hoffmann in Arthur Hall, when he wrote that immunity is “burning down the house to roast the pig”.76 The joint majority noted (at [57]) that the “direct way” to prevent losses is “through the elements of the cause of action”. While the Supreme Court did not detail how this would materialise, an attempt is made to address this issue below. The main guarantee for finality, and particularly for preventing collateral challenges, was the doctrine of abuse of process (at [80]). The joint judgment held that the protections against abusive process in English case law, as outlined in Arthur Hall, were just as applicable to New Zealand (at [65]-[66], [71]-72]).77 Furthermore, Tipping J held (at [161]): “Having the focus on the immunity of barristers conceals the true purpose of the law, which is to prevent its processes from being misused. The key issue is therefore when collateral challenge should be regarded as an abuse.” Thomas J pointed to instances where abuse of process will not arise from a litigant’s claim against an advocate and therefore “the rigidity of an absolute rule [of immunity] solicits injustice” (at [211]). The Bench concluded that immunity was not required to meet the public interest in finality.
United States: Ferri v Ackerman As mentioned above, liability for advocates can be seen as the touchstone of tort law in the United States. However, until 1979, federal public defenders were shielded by Crown immunity,78 which protects the judge and prosecutor.79 A unanimous decision of the United States Supreme Court in Ferri v Ackerman 444 US 193 (1979) established that a state-appointed public defender80 could be liable to the same extent as a privately retained counsel because their role was to represent their client and not the state (at 204 (Stevens J)).81 This case is worth considering on two counts. First, the fact that the wronged client was the recipient of legal aid is analogous to the facts in D’Orta-Ekenaike. It specifically points to a problem with immunity where it covers up crises in under-funded government legal services. Second, it raises useful arguments about why the equation of advocates with the judge, juror and witness is unfounded. The conflation of these roles is put in the D’Orta-Ekenaike judgment on the grounds that they jointly have a primary duty to the court, and should be able to perform their work “without fear of the consequences”.82 In Ferri, a judge appointed an attorney (under legislation that provides representation to all indigent people) to defend charges against a man relating to conspiracy to construct and use a bomb. After the indigent man was convicted and sentenced to 30 years imprisonment, and while the appeal was pending, he filed a complaint of negligence against his attorney on 67 different instances of 75 This extended the Court of Appeal decision, which left the question of immunity in criminal matters to “another day”: Lai v Chamberlains [2005] NZCA 37 at [191] (Hammond J). 76
Quoting Arthur JS Hall (A Firm) v Simons [2002] 1 AC 615 at 703.
77
The judgment of Hunter v Chief Constable of the West Midlands Police [1982] AC 529 was seen as particularly valuable by their Honours. Hunter is discussed below in relation to Australia. 78 Brown v Joseph 360 US 564 (1959); John v Hurt 438 US 478 (1978). However, even when federal jurisdictions upheld immunity, State courts allowed suits against public defenders: Spring v Constantino 168 Conn Supp 563; 362 A 2d 871 (1975). 79
On prosecutor’s immunity see Bradley v Fisher 80 US (13 Wall) 335 (1871); Randal v Brigham 74 US (7 Wall) 523 (1868).
80
United States public defenders have the same role as New South Wales public defender officers: http:// www.lawlink.nsw.gov.au/lawlink/pdo/ll_pdo.nsf/pages/pdo_index viewed 20 November 2006. 81 This was affirmed in Williams v Offıce of the Public Defender County of Lehigh 586 A 2d 924 at 927 (1990); Dziubak v Mott 486 NW 2d 837 at 840 (1992). 82
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alleged malpractice in the criminal trial.83 The court overturned the law that federal public defenders were immune on two grounds. First, it noted that distinct benefits accrue where public defenders are held to a standard of care. That is, negligence actions would signal to governments the need to address funding shortages for public defenders.84 Immunity masks any deficient government resources (including under-staffing, low salaries and unsatisfactory working conditions) that translate into negligent advocacy for poor people who use these services.85 This is an important concern, given that recipients of public legal aid have no choice as to which counsel they are appointed, such that supply and demand does not play a role in quality control. Second, the majority claimed that the public defender was not retained to represent the interests of society as a whole, like the judge and prosecutor, but its primary office was to “serve the undivided interests of his client” (at 204). Notwithstanding that public defenders serve “pursuant to statutory authorization”, their “duty is not to the public at large”, except in providing “effective representation” of criminal defendants (at 204). Accordingly, the advocate cannot be placed in the same bundle as “officers of the court”, who are loyal only to the government (at 193). Branda explains that because federally-funded public defenders are not susceptible to United States constitutional remedies, the appointed attorney should not be seen as an “agent of the state” but as an independent contractor.86 This argument is otherwise recognised in the United States in terms of non-federally funded advocates who owe their clients a duty of care due to their private nature. An adjunct argument, and the most outstanding mandate in Ferri for extending liability, was that public defenders have a duty to their client because they work privately in their own chambers (at 203) (Powell J). This is similar to Australian legal aid and Aboriginal legal services – they often retain private barristers who are not on a government salary. It was recognised in Ferri that defence barristers should be independent of the cloak of government control (at 194). Otherwise, there would be a grave compromise to the adversary system if defenders approached trials with an aura of being prosecuted, judged and defended by government officials. Indispensable to barristers’ effective performance is their “ability to act independently of the government and to oppose it in adversary litigation” (at 194-195) (Stevens J). Other jurisdictions have also recognised that blanket “court immunity” cannot be sustained. Rather, they have considered the exclusive duty of an advocate to the client. The Lords in Arthur Hall who supported prosecutor immunity considered that immunity for each legal officer required justification on its own public interest rationale.87 In Lai v Chamberlains [2005] NZCA 37 at [143] Hammond J commented that the analogy between advocates’ and witnesses’ immunity was tenuous, given that witnesses’ immunity was founded on encouraging freedom of speech, and had nothing to do with the policy behind advocates’ immunity. In Canada and the United States, judges have continued to be immune from suit without the need to extend the immunity to advocates.88 In addition to these criticisms, the “courtroom immunity” argument is losing veracity as the High Court of Australia extends advocates’ immunity well beyond the courtroom.
83
The court did not disclose the content of these allegations.
84
Cited in Branda, n 23 at 756.
85
Cited in Branda, n 23 at 756.
86
Branda, n 23 at 748.
87
Arthur JS Hall (A Firm) v Simons [2002] 1 AC 615 at 627 (Lord Bingham); at 698 (Lord Hoffmann). In support of this position, see Leng TK, “The Demise of Advocates’ Immunity” (2000) 9(2) Nottingham LJ 74 at 83; Hocking BA and Muirhead S, “Forensic Immunity to Negligence Actions: Continuing Challenges for the Common Law” (2002) 22(1) UQLJ 91. 88 Fridman GHL, The Law of Torts in Canada (2nd ed, Carswell, Toronto, 2002) p 867; Segal SC, “Comments: It is Time to End the Lawyer’s Immunity from Countersuit” (1988) 35 UCLA L Rev 99. The rationale for not being able to bring an action in negligence against United States state prosecutors is their duty to look at both sides of a case: see Speiser SM, Krause CF and Gans AW, The American Law of Torts (Rochester, New York, 1985) pp 199-205.
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HOW
COURTS HAVE OFFSET OPEN-ENDED LITIGATION: WITHOUT IMMUNITY
SECURING
FINALITY
The superior courts of Canada, England, New Zealand and the United States projected a resounding confidence that finality can be protected without advocates’ immunity. This approach contrasted with that of the joint majority in D’Orta-Ekenaike who accepted that finality had not been undermined overseas, but explained this by virtue of laws unique to the United States and England. This section of the article points to the development of common law rules in the United States, England, New Zealand and Canada, which are equally available to Australia. In developing these rules, overseas courts have been able to strike a balance between the rights of clients and curial resolution. Generally, in comparable jurisdictions where suits against advocates have been allowed, they have only been for the most blatant forms of negligence that have not required re-litigation. Consequently, in Canada there was not a retrial of principal proceedings to prove the liability of an advocate until 1999.89 Since Arthur Hall, there have been no retrials in England, despite an alarmed legal profession.90 In the United States commentators have stressed how difficult it is to bring a cause of action against an advocate.91 Pfennigstorf maintains that the “legal malpractice” situation compares favourably to that in medicine even without immunity in the United States.92 One United States judge observed: The majority is today declaring a lawyer’s holiday. If a doctor is negligent in saving a human life, the doctor pays. If a priest is negligent in saving the spirit of a human, the priest pays. But if a lawyer is negligent in advising his client … the client pays.93
When re-litigation would arise Not all in-court negligence would result in re-litigation. Retrials would only occur to determine the “causal negligence” – in other words, that the advocate was the cause of the client’s damage. This can place a heavy burden on the plaintiff,94 who bears the onus of proof,95 and can involve extensive costs if the plaintiff is required to show that both the defendant was negligent and the plaintiff was entitled to win the original suit and would have won except for the defendant’s negligence.96 These high litigation costs would automatically filter out many claims.97 Furthermore, Lord Steyn in Arthur Hall stated (at 682) that a claimant “who claims that poor advocacy resulted in an unfavourable outcome will face the very great obstacle of showing that a better standard of advocacy would have resulted in a more favourable outcome”. In many other instances, causation would not be under contention and no re-litigation would be required. For example, in Lai v Chamberlains it was clear that the information leaked by the advocate during the trial led to the Lais’ damage (because, as a result of the advocate’s admission, the judgment was entered against the Lais personally rather than their company), and in Folland v Reardon (2005) 249 DLR (4th) 167 (discussed below) it was clear that the advocate had failed to acquire vital and 89 Wernikowski v Kirkland (1999) 50 OR (3d) 124; Boudreau v Benaiah (2000) 46 OR (3d) 737 involving a negligence action for failure to call an expert in a criminal trial. 90
Seneviratne M, “The Rise and Fall of Advocates’ Immunity” (2001) 21 LS 644 at 662.
91
Duncan M, “The (So-called) Liability of Criminal Defense Attorneys: A System in Need of Reform” (2002) BYU L Rev 1 at 30. 92 Pfennigstorf W, “Types and Causes of Lawyers’ Professional Liability Claims: The Search for Facts” (1980) Am B Found Res J 253 at 266. 93
Bailey v Tucker 621 A 2d 108 at 124 (1993) (Larsen J).
94
Bastedo TG, “A Note on Lawyers’ Malpractice: Legal Boundaries and Judicial Regulations” (1970) 7 Osgoode Hall LJ 311 at 317. 95
Davis v Bunn (1936) 56 CLR 246 at 247 (Evatt J).
96
Wade, n 42 at 774.
97
Zander, n 25, p 135; Phillips J and Hawkins K, “Some Economic Aspects of the Settlement Process: A Study of Personal Injury Claims” (1976) 39 Mod L Rev 497; Keeler JF, “Paying for Mistakes – Professional Negligence and Economic Loss” (1979) 53 ALJ 412 at 433.
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available DNA evidence. Therefore, re-litigation only arises when causation has not been proved. The sections below consider common law mechanisms to prevent endless re-litigation where causation does become an issue, particularly in cases of negligent advice.
Abuse of process doctrine: Narrow interpretation in D’Orta-Ekenaike The High Court conceived England as capable of guarding finality as a result of its “abuse of process” doctrine, set out in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, which prevents collateral attacks on earlier criminal verdicts in subsequent civil proceedings, referred to in Arthur Hall (at 685) (Lord Browne-Wilkinson). The Lords stated that an action against an advocate for negligence in criminal proceedings will be struck out as an abuse of process so long as the criminal conviction stands. Even though Australia inherited the doctrine in Rogers v The Queen (1994) 181 CLR 251, the majority focused on the differences. It has been applied in Australian courts where an issue determined in earlier civil proceedings is sought to be re-litigated in subsequent civil proceedings98 and where an issue determined in earlier criminal proceedings is sought to be re-litigated in subsequent criminal proceedings.99 Therefore, the majority in D’Orta-Ekenaike pointed out that it had not been applied to preventing a civil case reopening a criminal case. Furthermore, it only applied to challenges to “intermediate decisions” and did not strike out claims that the final result should be different (at [80]). Lastly, the doctrine attempted to balance the interests of the private parties (at [77]). As such, only immunity could guarantee “that decisions of the courts, unless set aside or quashed, are to be accepted as incontrovertibly correct” (at [79]). This approach neglects the suggestion in Arthur Hall that the doctrine be applied “flexibly” rather than based on hard and fast rules.100 Therefore, even if the abuse of process doctrine is presently deficient in Australian law, the common law could develop the doctrine to protect finality when required.
The tort elements in suits against advocates The joint majority in D’Orta-Ekenaike went out of its way to distinguish the United States mechanisms which protected finality. Their Honours did not heed any common ground on which Australian courts could equally rely. The doctrine of “collateral estoppel” was particularly highlighted for its role in offsetting “abusive collateral attacks” in criminal cases. The doctrine precludes a criminal malpractice plaintiff who has unsuccessfully sought constitutional relief from re-litigating the issue of whether his counsel performed negligently.101 Australia had no equivalent protections, which, according to the joint majority, meant that collateral challenges could not be struck out (at [57]-[58], [60]). However, collateral estoppel is only one of a number of means for protecting finality used in the United States. The predominant means of safeguarding finality is by framing the four tort elements (duty of care, breach, causation and damage) in a way that prevents cases being brought simply to redress a lost case. In addition, United States courts have infused a fifth element of “finality” to ensure civil cases are only brought against advocates after the principal proceedings have been resolved in the plaintiff’s favour. The high onus of proof for each element, as well as an additional element of finality, has been criticised for amounting to “special protection [for advocates] from civil liability for substandard conduct”.102 Nonetheless, it would provide for an actionable duty of care that would increase professional standards and relieve wronged clients. The fifth element: Civil claims only after successful appeals A threshold for ensuring finality in the United States and England (as a result of Arthur Hall) is allowing a civil suit only after the principal civil case has been finalised or the criminal case has been 98
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 at 203-205.
99
R v Carroll (2002) 213 CLR 635.
100
Cited in Walmsley S, Abadee A and Zipser B, Professional Liability in Australia (Lawbook Co., Sydney, 2002) p 338.
101
Glen v Aiken 569 NE 2d 783 at 785 (1991); Decker JF, “‘Last Chance’ State Judicial Review in Criminal Cases – Illinois’ Collateral Attack: A Call for a Principled Jurisprudence” (1989) 38 DePaul L Rev 201 at 203.
102
Duncan, n 35 at 1255.
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successfully appealed.103 This addresses McHugh J’s fear of the use of a successful collateral case to seek “leave to appeal the principal proceedings” (at [113], [143]-[144]). In the United States, proof of exoneration or innocence is required before bringing a criminal malpractice action, in addition to the plaintiff proving the four elements of a professional negligence action – duty, breach, causation, and harm.104 In Pete v Henderson 124 Cal App 2d 487; 269 P 2d 78 (1954) the Californian Court of Appeal held (at 79) that when finality was achieved in the original judgment, adjudicating on the negligence of an advocate could not be classed as re-litigation. This was because the purpose of the trial is not to reverse the decision but to recover damages from the advocate and not from a party in the first action. Although there are problems with adding this fifth tort element, including Duncan’s concern that it is governed by the “guilty-aren’t-entitled-to-non-negligent-legal-representation” theme,105 it could provide a remedy to the plaintiff in cases such as D’Orta-Ekenaike. In that case, Mr D’Orta-Ekenaike had successfully appealed his case and had been acquitted prior to the civil trial. However, the High Court declined to adopt an approach that allowed negligence suits where finality had already been achieved. Instead the court held that this case can “be seen to be exceptional” and should not undermine the general need for court immunity (at [80]). Therefore, even where finality could be assured, the High Court was unwilling to make an exception to the sacrosanct immunity rule. Standard of care More than a mere error of judgment The superior courts of Canada,106 the United States107 and most recently England108 have consistently held that a mere error of judgment is not grounds for finding an advocate negligent. Consequently, in Canada negligence claims against advocates in civil proceedings are often struck out because they are a matter of a loss of opportunity to reach a more favourable outcome, which could have been achieved if the advocate judged the situation differently.109 Advocates in Canada cannot be sued merely because their advice turns out to be wrong, or they lose a case.110 In the United States, as Wade points out, there is “universal agreement that a lawyer is not an insurer or guarantor of the correctness of his work or of the results which will be attained”.111 Advocates’ negligence has been construed to involve something more than a wrong judgment call. Canadian judges have stressed that an advocate’s duty “involves only careful, un-negligent advice on matters of law”.112 According to Anderson J, the “error or ignorance” must be “such that an ordinarily competent solicitor would not have made or shown it”.113 These overseas standards compare with the standard for Australian doctors and out-of-court work for lawyers, who cannot be found negligent for a mere erroneous exercise of discretion.114 Therefore, the assumption that trials would need to be reopened to determine the outcome in the instance that the 103
Piper v Green 216 Ill Ap 590 (1920); Eccles v Stephenson 6 Ky 517 (1814); Arthur JS Hall (A Firm) v Simons [2002] 1 AC 615 at 642 (Lord Bingham).
104
Duncan, n 35 at 1255. See eg Shaw v State 861 P 2d 566 at 569 (1993); Coscia v McKenna 108 Cal Rptr 2d 471 at 474 (2001).
105
Duncan, n 35 at 1259.
106
Blackburn v Lapkin (1996) 134 DLR (4th) 747 (Borin J).
107
Morgan v Giddings 1 SW 369 at 370 (1886); Hart v Frame 14 S 922 (1839).
108
Arthur JS Hall (A Firm) v Simons [2002] 1 AC 615 at 726 (Lord Hope); at 677 (Lord Steyn).
109
Karpenko v Paroian (1980) 117 DLR (3d) 383.
110
Alexander v Small (1846) 2 UCQB 298 at 300.
111
Wade, n 42 at 760. See eg Purves v Landell (1845) 12 CL & F 91 at 102; McCartney v Wallace 214 Ill App 618 (1919).
112
Winrob v Street (1959) 19 DLR (2d) 172 at 176 (Wilson J).
113
Karpenko v Paroian (1980) 117 DLR (3d) 383 at 387, quoting Brenner v Gregory (1973) 30 DLR (3d) 672 (Grant J).
114
Walmsley, Abadee and Zipser, n 100, pp 424-425.
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advocate provided a different opinion is a fallacy.115 The standard of care can be set to ensure that speculation does not eventuate in a retrial. Rather, the standard for the advocate would be set according to minimum requirements for the legal profession. Standard of the profession An error of judgment will only constitute negligence when it falls short of the standards of the profession. The standard of care for advocates in comparable jurisdictions is determined by the courts, which is consistent with Australia’s general approach to these issues. Overseas courts have recognised that a “reasonable standard” based on the procedures of the profession is sufficient to protect against vexatious litigation. The Ontario Court of Appeal in Folland v Reardon (2005) 249 DLR (4th) 167 at [35] (Doherty J) replaced the standard of “egregious negligence”116 with the standard of a “reasonably competent lawyer” due to the capacity of reasonableness to be set according to the procedural requirements in advocacy. The judge could take into account the pressures placed on the reasonable in-court advocate in weighing up whether he or she fell below that standard. Also in the United States, advocates were once liable only for “culpable negligence”, which implied a degree of fault.117 However, in 1868 the court recognised that “An attorney [advocate] is always liable to his client for the consequences of his ignorance, carelessness, or unskilfulness, just as a physician is for his malpractice”.118 The facts in Folland signify that with a “reasonable standard” instituted for advocates, finality need not be compromised. In that case, a man wrongfully convicted of sexual assault was allowed to proceed with a lawsuit against a former defence lawyer who had failed to acquire an available DNA sample of semen that would have exonerated the accused. But because of this failure, the accused was sentenced to imprisonment for five years and served three years before the conviction was overturned on appeal in which the new barrister obtained the samples showing the semen belonged to another man. The Crown did not proceed with a new trial directed by the Court of Appeal because of the gravity of the evidence. Doherty J wrote (at [36]) for the unanimous Bench of the Ontario Court of Appeal that the “egregious error” standard would have required the plaintiff to show that she or he had a “trialable case on something more than negligence”. Despite the ostensible attractiveness of pitching the standard of care for advocates at “gross negligence”, which Kirby J suggested in D’Orta-Ekenaike at [239], the various grades of negligence have been described as an arbitrary matter of impression.119 It would perpetuate the unsettled distinction between in-court work that would be measured against a “gross negligence” standard and out-of-court work measured against a reasonable standard. One Canadian judge noted that determining differences between negligence, gross negligence and recklessness is the same as deciding between a fool, a damned fool and a God-damned fool.120 Perhaps it was the fact that D’Orta-Ekenaike represented a case of undue pressure on the part of the advocate to enter a guilty plea that Kirby J considered the standard of gross negligence would at least allow this type of case to be tried.121 Comparable jurisdictions have determined that the preferable approach is to base liability on “what the reasonably competent practitioner would do having regard to the standards normally 115
Groves and Derham, n 14 at 123.
116
Demarco v Ungaro (1979) 95 DLR (3d) 385 at 693 (Krever J).
117
See Pitt v Yalden (1767) 4 Burr 2060; 98 ER 74.
118
Reilly v Cavanaugh 29 Ind 435 at 436 (1868) (Frazer J). See also Hodges v Carter 239 NC 517; 80 SE 2d 144 at 146 (1954); Kehr R, “Lawyer Error: Malpractice, Fiduciary Breach or Disciplinable Offense?” (2002) 29 W St UL Rev 235 at 263. 119
Engler v Rossignol (1975) 10 OR (2d) 721 at 727 (Evans J).
120
Judge Magruder, cited in Linden AM, Canadian Tort Law (Butterworth & Co, Toronto, 1977) p 120.
121
Undue pressure to plead guilty amounted to an advocate’s gross negligence in Canada: Boudreau v Benaiah (1998) 154 DLR (4th) 650.
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adopted by his profession” and based on the circumstances.122 Hammond J in Lai v Chamberlains stated that this advocate-responsive standard would involve the court determining what is the “normal and reasonable” practice of the advocate.123 In the United States the usual methods of advocacy procedure have determined whether a reasonably competent member of the legal profession would have arrived at the same decision.124 The English judgment in Firstcity Investment Group plc v Orchard and Gee [2003] PNLR 162 (at [85] (Forbes J)) rejected the proposition that a failure to plead or otherwise advance any arguable point which might benefit the client is ipso facto negligent. Moreover, in Kirsch v Duryea 21 Cal 3d 303 (1978), the California Supreme Court held that advocates’ standard of care accounts for an advocate’s duty to the court. Where there is conflict with the duty to the client, the duty to the court prevails, such that it cannot be grounds for negligence. Australian judges in sanctioning advocates for falling below the standard of care have had no hesitation in determining reasonableness.125 The standard takes into account the unique courtroom conditions.126 When imposed in the United States, England and Canada, the standard takes into account that one party must always lose in litigation, that many decisions must be made under pressure of time and on the spur of the moment, and that litigation involves “taking chances”.127 Arthur Hall held that a decision made in these circumstances that later turns out to be a flawed decision would not in itself constitute negligence. Lord Steyn acknowledged that the judge would be mindful that “an advocate in court, like a commander in battle, often has to make decisions quickly and under pressure, in the fog of war and ignorant of developments on the other side of the hill”.128 Since there would invariably be different views on “questions of judgment and discretion”,129 it would not give rise to a cause of action or require re-litigation. Causation In the United States, failure to show causation and actual harm prevents many cases being heard by the courts. Some State courts in the United States hold that this requirement can be satisfied only if the plaintiff can prove that, but for the advocate’s negligence, the plaintiff would have been acquitted of the offence130 or would have been better off in the case.131 Others have held that the negligence of the advocate must be the “sole proximate cause” of the client’s damage.132 Duncan claims that causation of the latter type is almost completely unachievable for criminal cases.133 United States courts have held that, in a plea situation, it is commonly ruled that the defendant’s plea of guilty breaks the chain of causation between any negligence on the part of the advocate and the 122
Lai v Chamberlains [2005] NZCA 37 at [184] (Hammond J). See also Yeo S, “Dismantling Barristerial Immunity” (1998) 14 QUTLJ 12 at 14-18; Percy RA and Walton CT, Charlesworth & Percy on Negligence (9th ed, Sweet & Maxwell, London, 1997) p 567.
123
Lai v Chamberlains [2005] NZCA 37 at [188].
124
Simmons v Pennington & Son [1955] 1 All ER 240, cited in Wade, n 42 at 776.
125
See Etna v Arif [1999] 2 VR 353.
126
Solmon ML, “Negligence Claims Resulting from Decisions Related to Settlement Offers and Other Judgment Calls – Is There Really a Case Against Counsel and is an Expert Report Necessary?”, http://www.srglegal.com/articles/barristers.htm viewed 20 November 2006. 127
Melnitzer J, “Competency Standard: Barristers, Solicitors Face Same Music” (2005) 16(5) Law Times, http:// www.canadianjusticereviewcouncil.ca/article-same%20music%20for%20barristers%20and%20solicitors.htm viewed 20 November 2006; Wade, n 42 at 776. 128
Arthur JS Hall (A Firm) v Simons [2002] 1 AC 615 at 681-682.
129
Byrnes v Palmer 45 NYS 479 at 481-482 (1897).
130
Streeter v Young 583 So 2d 1339 at 1340 (1991).
131
Shaw v State 861 P 2d 566 at 569 (1993).
132
Wiley v County of San Diego 966 P 2d 983 at 987 (1998); Keeton WP and Prosser WL, Prosser and Keeton on the Law of Torts (5th ed, Westgroup, 1988) p 273.
133
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defendant’s intentional plea. The guilty plea is a supervening and superseding event that severs the chain of causation between the advocate’s negligent conduct and alleged harm to the criminal malpractice plaintiff.134 This further enforces the need for finality in the principal proceedings, resulting in an acquittal. Moreover, contributory negligence in the United States rules out a cause of action in tort.135 In Australia, however, showing that the defendant is one link in a chain of causation will suffice in negligence. While this may enable more trials to proceed, the collateral proceeding would not involve reopening the principal trial to the same extent. That is because it would not be necessary to eliminate all contributory factors since contributory negligence is not an absolute defence.136 Damages Establishing harm in criminal actions similarly feeds into the need to have the conviction overturned and innocence found. Therefore, in order to claim damages against negligent advocates in the principal criminal proceedings, finality is a necessary precondition.137 However, once an appeal is successful, the damages accrued would have been significant. This is evident in Mr D’Orta-Ekenaike’s claims, which included legal costs, lost work opportunities and psychological harm. For civil cases, some jurists have claimed the court may be required “to ‘speculate’ as to the amount of damages” which the first court, had it heard the case without the negligence, would have assessed,138 as well as take into account whether the original defendant was solvent.139 However, given that the burden of proof is on the plaintiff, court speculation in favour of the plaintiff will require compelling evidence. This proof usually comes from a successful appeal, as experienced in the United States.140 Of course, judges will have to assess damages on a case-by-case basis, including any contributory negligence on the part of the plaintiff. But this causes no particular problem to finality and does not differ from the costing of damages in other torts actions.
CONCLUDING
REMARKS
This article has shown that similar common law patterns have emerged among comparable jurisdictions to protect finality without immunity. While they do not provide a definitive forecast for how Australia’s law may develop without immunity, they indicate a capacity of our system to cope without immunity. By adapting the standard of care, causation and damages to the unique conditions of in-court advocates, in addition to only allowing trials after there is finality in the principal proceedings, there would be no detriment to finality. If such a threat did emerge, Australian courts could invoke abuse of process doctrines, which have provided adequate safeguards in comparable jurisdictions. As Hammond J stated in Lai v Chamberlains [2005] NZCA 37 at [156], rules to protect finality after the end of immunity should be able to evolve incrementally. Given that immunity is a creature of the courts, the courts are best positioned to set the terms on which it should be abolished, including the matter of curial finality. Indeed, D’Orta-Ekenaike provided the ideal opportunity to remove the general immunity for advocates and protect finality, because finality had already occurred. But instead the High Court chose to extend advocates’ immunity and left the door ajar to the legislature to abolish immunity on its own terms. In the aftermath of D’Orta-Ekenaike, the Standing Committee of Attorneys-General instigated an inquiry to review the statutory options.141 134
Brown v Theos 550 SE 2d 304 at 306 (2001).
135
Coggin R, “Attorney Negligence … A Suit Within A Suit” (1958) 60 W Va L Rev 225 at 233.
136
Wynbergen v Hoyts Corp Pty Ltd (1997) 72 ALJR 65 at 68 (Hayne J).
137
Shaw v State 861 P 2d 566 at 569 (1993).
138
Coggin, n 135 at 234.
139
Piper v Green 216 Ill Ap 590 at 590 (1920), cited in Wade, n 43 at 769-770.
140
Duncan, n 35 at 1293.
141
See eg Standing Committee of Attorneys-General, “Advocates’ Immunity From Civil Suit: Options Paper”, http:// www.justice.tas.gov.au/__data/assets/pdf_file/50583/Immunity_-_SCAG_Options_Paper.pdf viewed 20 November 2006.
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For advocates’ immunity to compromise equal treatment before the law, finality reasons need to be compelling. However, this comparative study has revealed that the majority’s finality concerns in D’Orta-Ekenaike are without sound empirical basis. The measures in comparable jurisdictions to mitigate threats to finality could be equally sustainable in Australia. Even if there is a scintilla of doubt regarding the justification for immunity, its catch-all parameters should be replaced with a liability for advocates in exceptional circumstances. The High Court could look afar – beyond the “rarefied”142 Lake Burley Griffin and towards other jurisdictions – and provide advocates with a liability that strikes a sensitive balance between a duty of care and finality.
142
Ironically, in D’Orta-Ekenaike v Victoria Legal Aid [2004] HCA Trans 118 (20 April 2004) p 33, Gummow J had described the House of Lords’ decision as “rarefied” when it decided to abolish immunity in Arthur Hall.
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