Using counsel wisely, managing risk when briefing barristers

Solicitors typically brief counsel for their specialist skills and expertise in particular areas of law and advocacy. While solicitors may rely on counsel’s advice, they have independent duties to the court and to the client requiring them to bring independent judgment to that advice and the matter in which they are retained. Claims experience shows that solicitors are sued when they fail to do this.

LPLC regularly sees solicitors accepting matters in unfamiliar or highly specialised areas of the law, hoping that counsel’s guidance will see them through. The more specialised the area of law, the heavier the reliance likely to be placed on counsel’s guidance.

This risk commonly arises in 2 scenarios. When a solicitor briefs a barrister who is also insufficiently familiar with the area of law and then the solicitor proceeds to put too much reliance on the barrister without critically considering the issues for themselves

In the second scenario the solicitor briefs a barrister who is familiar with the area of law, but the solicitor is unaware of the nuances of the area of law and fails to brief the barrister at the right time or with the right information to ensure they get the right assistance.

Another practice risk arises when the solicitor is familiar with the area of law but does not maintain a proactive approach to managing the barrister they have briefed and allows matters to languish with the barrister for too long.

Briefing counsel is not a shield to a professional negligence claim. The solicitor on the record remains responsible for the conduct of the file, the advice given to the client, and the decisions taken along the way.

This risk does not arise from carelessness. It arises from system pressures. A lack of clear protocols on matter selection, an incomplete process for briefing and managing counsel and time constraints encourage mis-timed briefing or failed follow-up. Complexity encourages deference to specialist expertise. Once counsel is involved, delay and uncertainty can feel externally controlled, even though the solicitor retains responsibility for the file.

A practitioner was retained to act in a coronial inquest by the family of the deceased. At the end of the inquest the family asked the practitioner, who practised mainly in criminal law, to act in nervous shock claims for them. He agreed to act despite not having expertise in personal injury litigation.

Although the practitioner briefed counsel and obtained advice at different times, the personal injury claims were not handled in an organised manner. Instructions and the retainers were not properly documented, and it was impossible to tell from the file which members of the family the practitioner was retained to act for and when for what. There was a lack of file notes to support the practitioner’s recollection of what he said as well as no evidence the practitioner properly understood and documented the applicable time limits.

There were also various delays in obtaining advice from counsel, identifying the correct defendants, and issuing and serving proceedings. The proceedings were not drawn by counsel.

Subsequently, the proceedings were dismissed when they were held to be out of time under the Limitation of Actions Act 1958 (Vic). The claimants then sued the practitioner for the lost chance of obtaining damages.

A solicitor who goes on the record as solicitor for a party is representing to the court that he or she has the necessary level of competence to act as solicitor in the proceeding.

Their duty is to exercise the reasonable degree of care and skill to be expected of competent and reasonably experienced solicitors. (Regent Leisuretime Limited v Skerrett [2006] EWCA 1184).

Solicitors are not bound to know all the law. However, they have a responsibility for having a basic understanding of the law involved in any case they handle and for making a judgment about any advice they receive.

Within that duty it is ‘responsible conduct’ for a solicitor to seek advice from the specialised bar (Hon Michael Kirby, Boland v Yates Property Corp Pty Limited [1999] HCA 64).

A solicitor who seeks the advice of counsel is normally justified in relying on that advice and is not negligent by doing so: the ordinary rule is that “. . . save in exceptional circumstances a solicitor cannot be criticised where he acts on the advice of properly instructed counsel”. (Davy-Chiesman v Davy-Chiesman [1984] Fam 48 per May LJ)

This ordinary rule is subject to significant qualifications. Most importantly the solicitor retains a separate and independent duty to the client in tort and contract and must exercise independent judgment to the extent that it is reasonable having regard to the solicitor’s reputed knowledge and experience, the complexity of the case and the skill and experience of the barrister who has been retained. (Boland v Yates Property Corp Pty Limited [1999] HCA 64)

• Use the LPLC Engagement Decision Tool at the start of each matter to assess if this is the right client, right matter and right time, and decline the matter if core issues fall outside your competence.

• Define your competence at file opening by recording, in the opening file note, which aspects of the matter sit within your expertise and which require specialist input.

• Select counsel at the point of briefing by confirming, through the clerk or professional network, that the barrister regularly practises in this specific area and has current availability to meet your deadlines.

• Brief counsel fully when sending instructions by using a standard briefing checklist that lists the facts, issues, objectives, deadlines, and documents, and confirm in writing what advice you are seeking.

• Interrogate advice when it is received by reading it promptly, testing the reasoning against the facts and pleadings, and asking follow-up questions where the advice is unclear, qualified, or incomplete.

• Control delay during the life of the brief by diarising response dates, contacting counsel as soon as deadlines slip, and retrieving the brief if progress cannot be achieved.

Why this protects your file

Active control of counsel protects your client by ensuring decisions are timely, reasoned, and aligned with their instructions. It keeps your file defensible by showing that advice was sought, understood, tested, and applied through your independent judgement rather than passed through unexamined.

While briefing a barrister to provide expertise and advice is good practice, it does not absolve a solicitor from applying independent judgment and expertise and is not a solution to dabbling.

LPLC receives claims that can be attributed to practitioners’ over-reliance on, or poor briefing of, a barrister. In some instances, the practitioner acts outside their area of expertise and thinks they can just brief a barrister. In others, they fail to adopt a proactive approach to managing the barrister throughout a matter.

Acting outside expertise

It is poor risk management to take on matters you have little or no expertise or knowledge of, expecting that you can just brief the barrister to manage it. Without the right expertise you will not know when or what to instruct the barrister to do or advise on.

Clients are entitled to expect the solicitor they retain knows the law relevant to their matter. Have a policy on what areas of law you will work in and don’t stray outside those areas.

Other risk issues

Practitioners should always ensure counsel is competent to accept the brief and consult their professional network and barristers’ clerks if uncertain.

After the barrister is selected and briefed, maintain a proactive approach to remain in control of the matter. Regularly review the progress of files and if the barrister is sitting on a brief, find out what further information is required and provide it promptly. Do not accept excuses for delay, have an office policy about retrieving briefs from non-performing barristers and set clear time limits.

Practitioners need to communicate effectively with counsel, so all relevant issues are canvassed and deadlines met. Barristers frequently comment on not being fully briefed, with instructions that are half-baked and poorly expressed. Consult the barrister if you are unsure about instructions or what a comprehensive and complete brief should contain.

Practitioners ignoring or overlooking barristers’ advice has resulted in claims, so read and properly consider any advice as soon as possible after receiving it.

Tips

Involving counsel is not a shield to a professional negligence claim.

Solicitors typically brief counsel for their specialist skills and expertise in particular areas of law and advocacy. While solicitors may rely on counsel’s advice, they have independent duties to the court and to the client requiring them to bring independent judgment to that advice and the matter in which they are retained.

LPLC regularly sees solicitors trying their hand at unfamiliar or highly specialised areas of the law, hoping that counsel’s guidance will see them through. The more specialised the area of law, the heavier the reliance likely to be placed on counsel’s guidance. When things go wrong and the solicitor is sued in negligence or is subject to a claim for wasted costs, they are often heard to say “but I relied on counsel” or “I am unsure why we did it that way. You’ll have to ask the barrister”.

Solicitors have a responsibility for having a basic understanding of the law involved in any case they handle and for making a judgment about any advice they receive. However, solicitors are not bound to know all the law. Their duty is to exercise the reasonable degree of care and skill to be expected of competent and reasonably experienced solicitors.1 In the words of the Hon Michael Kirby, it is “responsible conduct”2 for a solicitor to seek advice from the specialised bar. Since the 13th century, there has been a division of function between barristers and solicitors reflecting the different skills each of these branches of legal practice will bring to bear: a “. . . solicitor will not usually have the experience or the skills possessed by the barrister. That is why the barrister is briefed”.3

Seeking advice

A solicitor who seeks the advice of counsel is normally justified in relying on that advice and is not negligent by doing so: the ordinary rule is that “. . . save in exceptional circumstances a solicitor cannot be criticised where he acts on the advice of properly instructed counsel”.4

This ordinary rule is, however, subject to significant qualifications. And despite the ordinary rule, it is rare that a solicitor would avoid liability in negligence because they have relied on counsel.

Duty to conduct proceeding

Unthinking reliance on counsel is not sufficient to discharge the solicitor’s duty to the court to ensure the proceeding is conducted responsibly.5 A solicitor who goes on the record as solicitor for a party is representing to the court that he or she has the necessary level of competence to act as solicitor in the proceeding:

“[g]oing on the record is not a mere formality”.6

While it is sometimes difficult, particularly for a junior solicitor, to gainsay counsel, the court still expects that from the time a person has signed the roll of practitioners, “they will exercise the independence of mind and commitment to the rule of law that is necessary for all lawyers”.7

Not a post box

The solicitor is not merely a post box, conveying counsel’s recommendations to the client without consideration as to whether they will advance the client’s interests. The solicitor retains a separate and independent duty to the client in tort and contract. Accordingly, “[t]he solicitor must exercise independent judgment to the extent that it is reasonable . . . having regard to the solicitor’s reputed knowledge and experience, the complexity of the case and the skill and experience of the barrister who has been retained”.8

Recent English authority suggests that a solicitor’s relative inexperience compared to the barrister’s, does not make the solicitor any less liable.9 The solicitor is required to ensure that counsel’s advice is properly reasoned and must be satisfied that the advice is tenable.10 If the solicitor reasonably considers the advice is obviously wrong, the solicitor must reject the advice and advise the client accordingly. The solicitor may be required to advise about retaining a new barrister.11 Where advice is right, the solicitor should also be able to explain why to the client, and to the court if required.

While briefing a barrister to provide expertise and advice is good practice, it does not absolve a solicitor from applying independent judgment and expertise and is not a solution to dabbling.

Baron Alder is a partner, Moray & Agnew.

Tips

1. Regent Leisuretime Limited v Skerrett [2006] EWCA 1184.

2. Boland v Yates Property Corp Pty Limited [1999] HCA 64.

3. Harley v McDonald [1999] 3 NZLR 545 (CA).

4. Davy-Chiesman v Davy-Chiesman [1984] Fam 48 per May LJ.

5. Patel v Tailor [2021] NZHC 3164.

6. Note 3 above.

7. Re Albert (a barrister) and McLean (a solicitor) [2021] VSC 297.

8. Note 2 above. See also Bolitho v Banksia Securities Limited [2021] VSC 666.

9. Richard Terrence Percy v. Merriman White [2021] EWHC 22 (Ch).

10. Note 3 above.

11. Boland v Yates Property Corp Pty Limited.