What is Advocate’s Immunity?

Imagine being sent to prison because of the incompetence of your lawyer – and knowing that he or she would never be held legally responsible for their negligence.

If you are unhappy with the services your lawyer has provided, you can fire them at any time.

However, you will usually have to pay for all the work they have done on your case up to that point.

In some circumstances your lawyer may be liable for negligence or fraud, and you may be able to seek compensation.

But unfortunately in other cases, you may not be able to get compensation even if your lawyer completely messes up your case.

The doctrine of ‘advocate’s immunity’ means that lawyers are protected from a charge of negligence that is intimately related to litigation.

This means that negligence whilst in the courtroom, or work out of court which leads to a decision affecting the conduct of a case in court, is beyond the reach of a lawsuit.

Clients who suffer from such negligence can therefore end up without a legal remedy.

It is true that courtroom lawyers are under a lot of stress and often have to think on their feet.

But surgeons are not protected from lawsuits that arise from any negligence in the operating theatre, and their job can also be stressful and require on the spot decisions.

So why do lawyers enjoy this immunity, especially when it has already been abolished in other common law countries like New Zealand, Canada and the United Kingdom?

Similarly the US has no doctrine of advocate’s immunity.

Advocate’s immunity has a long history, and is relevance today was confirmed in the High Court decision in D’Orta-Ekenaike v Victoria Legal Aid in 2005.

In 1996, the defendant in this case was charged with rape and he got legal assistance from Victoria Legal Aid.

He was advised by his lawyers to plead guilty.

They told him that if he pleaded guilty he would only receive a suspended sentence, but if he chose to plead not guilty and the court convicted him, he would go to prison.

As a result of undue pressure and influence, he ended up pleading guilty.

Unfortunately for him, he was sentenced to prison anyway.

Understandably angry at the advice he had received from his legal counsel, D’Orta-Ekenaike sued.

The court found that advocate’s immunity still applies in Australia, meaning that he had no legal remedy.

There were two main reasons that led the court to conclude this.

The first reason was that everyone is entitled to the immunity: including judges, jurors and witnesses, which has existed for centuries.

The court noted that a disappointed litigant cannot sue a witness that did not perform well in court, so why should they be able to sue their lawyers?

The second and most substantial reason is the high value placed on the finality of court cases.

If the immunity were abolished, cases which have been settled in court would be open to re-litigation if it was found that lawyers acted negligently.

Although the issue of a lawyer being negligent is technically separate from the trial proceedings, any such finding of negligence would inevitably lead to the re-litigation of the original case.

Finality is vital to the administration of justice to all parties involved – including the defendant, witnesses and complainant.

If there is no finality, people may be prevented from moving on with their lives.

This means that once cases are resolved, they are generally not to be reopened, except in limited circumstances, such as the discovery of fresh evidence.

It is easy to see how a disappointed defendant, unhappy with a decision in court but unable to appeal may look around to see if they could gain any advantage from alleging negligence against their solicitor or barrister.

This would be most unfair if a lawyer was made vulnerable to attacks from clients, when losing a case is not always their fault.

But if it is the fault of a negligent lawyer, leaving a client with no recourse, especially if they have received a prison sentence because of it is manifestly unfair.

In the D’Orta-Ekenaike case, the leading judgment of the High Court held that the wider interests of society were more important than those of the individual parties and that it is in the interests of society for court decisions to contain the element of finality.

Critics of the immunity point to England and note there has been no rise of negligence claims against lawyers, nor have their premiums gone up.

There is also no evidence of ultra-cautious lawyers leading to longer trials.

But since the courts have continually upheld the doctrine, it will be up to parliament to decide to remove it, and despite calls for it to be scrapped, advocate immunity still remains.

In the meantime, this means that choosing the right lawyer is all the more vital to ensuring the best possible result in your case.

And if your lawyer fails to live up to expectations, a complaint to the Legal Services Commissioner can still lead to disciplinary action being taken against them, including, in extreme situations, a suspension or loss of their licence to practice.