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  • The recent decision of Attwells & Anor v Jackson Lalic Lawyers Pty Limited confirmed that advocate’s immunity from suit applies where there is a functional connection between work done by a lawyer and the judicial determination in a case.
  • The immunity generally does not apply to settlement advice, subject to a possible exception for some cases involving judicially approved settlements.
  • Advising on the merits of settlement is an essential part of a solicitor’s role in litigation and the Attwells decision does not impact upon that duty.
  • Settlement advice and discussions should be documented to reduce the prospects of a successful negligence claim.

In Attwells & Anor v Jackson Lalic Lawyers Pty Limited [2016] HCA 16 (‘Attwells’) the High Court reiterated that advocate’s immunity from suit remains an integral part of the common law. However, in Attwells the court clarified that while an advocate is immune from suit in relation to in-court work, and in relation to ‘work done out of court which leads to a decision affecting the conduct of the case in court’ (Giannarelli v Wraith (1988) 165 CLR 543 at [560]), a functional connection between the work of the advocate and the determination of the case by the court is necessary to engage the immunity (Attwells, at [49]). The immunity generally does not extend to settlement advice, subject to some possible exceptions.

So does the decision in Attwells impact on Lawcover’s advice for solicitors who act in litigation?

Ensuring that clients are fully advised in relation to litigation is always good business practice, is consistent with ethical requirements, and helps minimise the risk of a claim occurring. The decision in Attwells provides lawyers who practice in litigation with an opportunity to pause and consider whether the way in which their clients’ litigation is conducted is both satisfactory to the client and also managed in a way that prevents possible negligence claims.

There are a number of ways in which solicitors can manage risk in this area.

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