LEGAL ETHICS ADVOCATE IMMUNITY
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Table of Contents LEGAL ETHICS: ADVOCATE IMMUNITY ...............................................................................1 INTRODUCTION ...........................................................................................................................1 MAIN BODY...................................................................................................................................1 CONCLUSION ................................................................................................................................3 REFERENCES ................................................................................................................................4
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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. Have 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
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in 2005. 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 practising in Australia as they do not give proper time and advices to their client which leaves them unhappy and unsatisfied (Cameron and et. al., 2016).
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
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To act within the authority's scope
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To perform confidentiality of instructions
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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). 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 court reconsiders barristers' immunity. 2003). 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). 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 Get supreme quality Online Assignment Help by the proficient writers of Global Help Australia 5
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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.
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 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.
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.
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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 Sinclair 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.
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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. 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.
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