The doctrine of advocate’s immunity means that lawyers, solicitors and barristers are protected from any liability for negligence that is intimately connected to advice given in respect of litigation. This means that negligence whilst in the courtroom, or work out of court, which leads to a decision by the court is beyond the reach of a lawsuit.

On 4 May 2016, the High Court of Australia (HCA) clarified the boundaries of the doctrine of advocate’s immunity in Atwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16. Essentially, the HCA held that immunity does not apply in those instances where negligent legal advice made out of court leads to a settlement.

In Atwells, Mr Attwells had been a co-guarantor for a $1.5 million loan made by the ANZ Bank to the company Wilbidgee Beef Pty Ltd. Following defaults on the loan, ANZ commenced proceedings in the New South Wales Supreme Court against Mr Attwells who engaged Jackson Lalic Lawyers to represent him. The matter was eventually settled out of court following advice by Jackson Lalic. Subsequently, Mr Atwells alleged that Jackson Lalic gave negligent advice to him to settle the claim with ANZ on terms that judgment would be entered against the guarantors and the company for almost $3.4 million. The amount owed by Mr Atwells and his co-guarantor was $1.5 million plus interest.

The HCA found that the doctrine of advocate’s immunity did not protect Jackson Lalic in this case. It held that the ‘intimate connection’ between the advocate’s work and ‘the conduct of the case in court must be such that the work affects the way the case is to be conducted such that it affects the outcome of the judicial decision. At [46], the HCA held that “[t]he notion of an ‘intimate connection’ between the work the subject of the claim by the disappointed client and the conduct of the case does not encompass any plausible historical connection between the advocate’s work and the client’s loss; rather, it is concerned only with work by the advocate that bears upon the judge’s determination of the case.”

In summary, the doctrine of advocate’s immunity does not extend to negligent advice provided outside of the courtroom to a client and which the advice ultimately influences a client to reach a settlement. For the advocate’s immunity to operate, the advice must be intimately connected to the conduct of the case so as to affect the outcome of the judicial decision by the court.

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