Advocates’ immunity reconsidered by High Court

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May 31, 2016

In October we wrote about the longstanding legal principle that a lawyer is immune from being sued when they are involved in advocacy. The principle is known as “Advocates Immunity”. In other words, the law recognises that lawyers do not owe a duty of care in most cases when representing a client in Court. This principle has been extended over the years to include most legal work involved with an appearance in Court, even work done in preparation of a case.

The recent High Court decision in Gregory Ian Attwells & Anor v Jackson Lalic Lawyers Pty Ltd has trimmed back the protection once given to solicitors. It has been confirmed by the new bench of High Court judges that the protection does not extend to negligent advice given by a lawyer that leads to settlement of a case. In this case the matter was settled by signing Consent Orders which were filed in Court.  Before this decision a solicitor was immune from being sued for negligence in relation to problems with Consent Orders. 

We suspect that the case is of more interest to LawCover, the insurer of solicitors in New South Wales, than it is to clients. The case, like most, shows the evolving nature of the law and shows that few areas of the law are in a state of flux.

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