Advocates’ immunity safeguards lawyers against litigations by their clients on claims of negligence. The immunity prevents clients from filing lawsuits against their barristers or solicitors for neglectful advice or conduct who may have adversely affected the outcomes of their cases. Recently, the doctrine of advocates’ immunity has been abolished in several jurisdictions such as New Zealand, England, and Wales. However, the Australian High Court has retained the policy triggering a public uproar. The doctrine’s opponents suggest that it gives lawyers a privilege over other professionals, while its supporters maintain that it guarantees an effective judicial process and averts collateral attack. Despite the idea that the advocates’ immunity benefits lawyers while victimizing the clients, Australia should retain it because it promotes the administration of justice, limits relitigation, and safeguards participants in judicial proceedings.
Arguments Supporting the Retention of Advocates’ Immunity in Australia
The abolishment of the immunity doctrine can affect the administration of justice adversely. If the advocates were to face litigations initiated by their clients regarding negligence, their judgments would be greatly influenced by the need to avoid liability. In such cases, the lawyers may act incompetently to limit the risk of litigation, resulting in unfavorable outcomes. During the Giannarelli v Wraith case, Anthony Mason, the then chief justice (CJ), argued that lawyers’ defensive decisions or cautions about possible liability might negatively affect legal proceedings. Such protective measures would make litigation more complex, lengthy, and costly. Hence, the threat of potential lawsuits may hinder lawyers from freely advising their clients on legal issues resulting in poor case outcomes.
The advocates’ immunity prevents relitigation and incidences of collateral attack. Eliminating the doctrine may result in massive re-opening of completed cases, thus affecting the public’s confidence in the legal system. In the Giannarelli v Wraith case, Mason CJ established that removing the immunity policy would encourage unsuccessful litigants to flood the judicial system with claims of negligent counsel. The collateral attack may adversely affect the courts’ credibility and the finality principle. Equally important, such relitigations may be time-consuming because they may force other parties involved in the case to endure the lengthy legal proceedings again. Thus, the presence of the immunity doctrine is critical in averting any cases of relitigation based on the advocates’ negligence.
The immunity policy covers lawyers and extends to other participants in the court proceedings. The main issue of contention against the doctrine is that it provides special status to advocates which do not apply to other professionals. However, it is evident that the immunity from suit also covers any statements and actions by jurors, witnesses, judges, and other court staff in legal proceedings. This implies that immunity given to participants in court activities is not aimed to offer personal benefits but to safeguard the operations of the judicial system. Therefore, the doctrine extends to several individuals involved in legal proceedings; hence it would be unfair to exempt the lawyers from its protection.
Sanctions by professional bodies and courts are effective in regulating lawyers’ conduct. Disciplinary bodies such as the Law Society or the Bar Association have the power to suspend, penalize or dismiss any legal practitioners, including advocates for professional misconduct. In addition, courts can also fine or discharge errant lawyers depending on the severity of the misconduct. This proves that the immunity doctrine does not shield the lawyers from professional negligence cases because they can be penalized by both courts and the disciplinary bodies.
Arguments for the Abolishment of Advocates’ Immunity in Australia
Some critics believe that the advocates’ immunity exempts lawyers from the laws of professional negligence that govern other specialists. In this case, other experts such as surgeons and doctors have responsibilities to both their clients and an ethical code; they also experience a lot of tension when performing their duties compared to the lawyers. Nevertheless, such professionals lack immunity and can face litigation for negligence cases. Such privileges may encourage barristers and lawyers to abuse their power because they cannot be sued for negligence. In addition, the advocates’ immunity may result in the public’s loss of confidence in the legal profession and the judicial system due to the presumption that the law protects the lawyer’s interests over their clients’. Hence, the advocates’ immunity should be eliminated to ensure equality before the law for professional negligence and promote the public’s confidence in the legal system.
Other opponents of the immunity doctrine argue that it may result in unfair outcomes and suffering for the clients. When a lawyer’s negligence in a trial causes severe damage or loss to a client, such professionals should be held liable for any misconduct resulting in the poor outcome. However, the advocates’ immunity denies an opportunity for legal remedies for the clients, which may lead to a re-examination of the case or compensation of the affected individuals. This is evident in the D’Orta-Ekenaike v Victoria Legal Aid case, where Mr. D’Orta-Ekenaike followed his solicitor’s advice and pled guilty to a rape crime which led to his imprisonment. Although he was later acquitted after a re-trial, he could not prosecute his solicitor due to the advocates’ immunity policy. Therefore, this doctrine causes immense suffering to clients because some may be imprisoned or lose property of high value due to their lawyer’s negligence and yet lack legal remedies.
There is a growing perception that the advocates’ immunity may not be significant in safeguarding the judicial system’s integrity. In the Attwells v Jackson Lalic Lawyers Pty Limited and Kendirjian v Lepore, the Australian High Court’s decision for retaining the advocates’ immunity was to prevent relitigation. However, other jurisdictions such as England and New Zealand, which have recently eliminated the advocates’ immunity, have not experienced massive re-opening of cases on negligent claims. In this case, the finality principle (res judicata) and the inherent power of the courts are adequate to avert the abuse of the judicial system. Thus, abolishing the immunity policy will significantly boost the public’s confidence in the legal system because it guarantees equality before the law.
The idea that the advocates’ immunity exempts lawyers from professional negligence cases may be untrue. All legal practitioners, including advocates, are regulated by professional bodies such as the Law Society or the Bar Association. Therefore, these bodies safeguard the public’s interests by penalizing, suspending, or dismissing advocates involved in misconduct. Similarly, courts can also sanction errant legal practitioners, resulting in the termination of a professional’s practice, among other punishments. The court’s inherent jurisdiction over the legal practitioners is evident because they can mandate an award of costs against lawyers who incurred costs unfairly or due to undue delay or unreasonable causes. Therefore, the advocates’ immunity does not exempt lawyers from charges of professional misconduct because other regulatory bodies and the courts take disciplinary actions against errant legal practitioners.
Regarding the claim that the immunity policy may result in unfair verdicts for the clients, lawyers have a bigger obligation to the justice system than to their clients. In this case, the lawyers’ duties to the courts may conflict with the responsibility of care to their clients, resulting in poor outcomes. As a result, an advocate cannot be presumed to be negligent if they acted according to their duty to the court, even if it affects their client’s case. Additionally, the court process may be complex, and losing a case may not entirely be the lawyer’s fault. In some cases, negative results may be due to the lack of evidence and faulty witnesses. Thus, the advocates’ immunity does not victimize the clients because poor case outcomes may result from various factors, such as inadequate evidence, and are not due to a lawyer’s incompetence.
The notion that the invalidation of the immunity doctrine may have less impact on relitigation may be unfounded. Other jurisdictions, such as New Zealand, may not have experienced massive relitigation following their abolishment of the advocates’ immunity. However, this may be due to the implementation of certain procedures that preceded the eradication of the policy. This implies that distinct regulations and directives guide different jurisdictions; hence, there is no assurance that ending the immunity policy in Australia would not result in relitigation. Therefore the presumption that Australia’s judicial system may be well-prepared to eradicate the immunity doctrine may be baseless.
The Australian High Court’s decision to retain the advocates’ immunity has sparked a public debate, with some supporting the verdict and others strongly opposing it. Nevertheless, it is imperative that the ruling is upheld to promote administrative justice and limit collateral attack and relitigation. Although some critics argue that the doctrine benefits lawyers by protecting them against misconduct charges, courts and professional bodies, such as the Bar Association, penalize errant advocates. Additionally, the legal system’s procedures vary across different jurisdictions; thus, Australia’s judicial system may slightly differ from that of England or New Zealand. Hence there is no guarantee that abolishing the immunity policy in Australia would not lead to massive relitigation. Therefore, the doctrine should be retained until appropriate measures are implemented to ensure no adverse blowback to the judicial system.