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 and in extreme cases may lose their right to practice.

The 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.

Whichever barrister you brief, you still need to bring your own independent judgment to the issues. That duty does not shift to counsel. Whether the barrister is a specialist or not, the solicitor remains responsible for identifying the issues, briefing them promptly and properly, and thinking critically about the advice received.

In an extreme example set out in Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666 and the 2022 regulatory decision, the court described the solicitor on the record as acting as a ‘post box’ for the barristers and litigation funder who were really conducting the matter. The solicitor acknowledged that he had no experience in running complex class actions and relied too heavily on both counsel in the matter. As a result, the court considered the practitioner was not a fit and proper person to remain on the Roll and he was removed from it for two years.

In contrast, the court found in Boensch v Bingham (No 2) [2026] NSWSC 529 that it was reasonable for the solicitor to rely on the barrister’s advice that the prospects of success on a special leave application were low but the prospects of the appeal, if special leave was granted, were good. The court found that the advice was not obviously or glaringly wrong and there were no indications that should have put the solicitor on notice that it was wrong. The circumstances of this matter included that the practitioner had come into the proceedings quite late and the barrister had been involved in the matter for a much longer period of time and was said to be a specialist in the area.

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. They are responsible 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 counsel’s advice is normally justified in relying on it 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).

That 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

• 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.

Active control of counsel protects your client by ensuring decisions are timely, reasoned and aligned with their instructions. It protects you 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.