By Matthew Harding and Kaveetha Kumar -
Snapshot
- Solicitors, whatever their level of expertise, must give attention to the issues considered by counsel and not blindly accept counsel’s advice.
- If the solicitor reasonably considers that the barrister’s advice is obviously or glaringly wrong, the solicitor has a duty to reject it.
- A solicitor is not entitled to shrink from raising doubts on counsel’s advice, even from eminent counsel.
Solicitors, particularly those in general practice, are entitled to rely on advice from counsel who specialise in the relevant area of law. However, the solicitor must take steps to ensure counsel is adequately briefed. The obligations on solicitors to form their own independent views cannot be shifted to counsel briefed to advise, except in exceptional circumstances.
A solicitor cannot adopt a passive role in passing on counsel’s advice, or submissions or correspondence settled by counsel, to the client.
The Full Federal Court in Yates v Boland (1998) 157 ALR 30 held that counsel, not having alerted the solicitors to any deficiency in the experts’ reports, did not absolve the solicitors from their obligations. In Heydon v NRMA & Ors (2000) 51 NSWLR 1 the issue was whether the solicitors had expressed their doubts to counsel on counsel’s views. In Wakim v McNally (2002) 121 FCR 162, the Federal Court held that the solicitor, experienced in the area, had a duty to consider the relevant authorities in considering counsel’s advice.
The more specialist the nature of the advice from counsel, the more reasonable it will be for a solicitor in general practice to accept and to act on it. A solicitor with experience in the particular area of law in which advice is sought cannot rely on counsel to the same degree. The English Court of Appeal held that a solicitor with specialist expertise must bring their experience to bear: Langsam v Beachcroft LLP [2012] EWCA Civ 1230.
The mere act of retaining counsel will not of itself protect against a finding of breach of duty. Reliance on counsel’s advice must be proper and reasonable in the circumstances. The English High Court held that a solicitor who reasonably relies on counsel is not negligent if counsel instructed is competent, experienced and properly instructed: Hellard & Anor v Irwin Mitchell [2013] EWHC 3008.
