By Sophie Duffy and Thomas Cavanagh -
Snapshot
- Allegations of professional negligence are often made by reference to an adverse outcome, rather than any failure to meet the applicable standard of care.
- This article explains how a solicitor’s duty to exercise reasonable care is discharged in interpretative and adversarial contexts.
- It also outlines practical steps practitioners can take to demonstrate reasonableness and manage risk when advising clients in circumstances of uncertainty.
Lawcover consistently sees claims involving allegations of negligence that are made solely in reliance on an adverse outcome for the client. In the face of these claims, it is important for practitioners to refresh themselves on the standard of care to which they will be held, as well as the measures they can take to demonstrate their conduct met this standard.
Like all duties, a solicitor’s duty of care to their client may be discharged by the exercise of reasonable care (see, e.g., Heydon v NRMA Ltd [2000] NSWCA 374 at [146]). As with any other profession, the standard of care is that which may reasonably be expected of a professional in that area. In the case of legal practitioners, it is often the case that what a client considers reasonable is total accuracy in advice and outcome. This holds practitioners to a standard that is both contrary to authority and inconsistent with the interpretative and adversarial context in which practitioners provide advice.
