Advocates’ immunity revisited and regretted in the Supreme Court

You might have noticed in recent weeks lawyers’ immunity from suit getting some renewed attention – first in the Victorian Supreme Court in Goddard Elliott v Fritsch [2012] VSC 87 and then in resulting media reports such as this one in The Sydney Morning Herald.

Justice Bell’s trial division judgment was handed down a fortnight ago. It runs to 321 pages but mercifully includes a summary and a conclusion which are both succinct and helpful, plus a three(!) page table of contents.  Apart from advocates’ immunity, the judgment deals with apportionable liability, the rule in Jones v Dunkel, loss of opportunity damages, the allocation of responsibility and liability between a client’s solicitors on one hand and his barristers on the other, issues arising from acting for a mentally ill client and how ‘robust’ lawyers can and should be in giving advice in relation to settlements.

I plan to look at some aspects of the judgment in a series of brief posts over coming weeks.

Let’s start off today with the facts as found in the Supreme Court.

Paul Fritsch was mentally ill from the outset of his family law litigation. His lawyers knew this. The solicitors had two years to prepare the case but “inexcusably” allowed it to drift such that, at the commencement of the hearing, a three-day adjournment was required to fill the preparatory gaps. This placed enormous pressure on a fragile Mr Fritsch and his legal and accounting team. Then, as the case was about to resume after that adjournment, Mr Fritsch settled at the door of the Family Court. The settlement’s terms were overly generous to the former Mrs Fritsch to the tune of approximately $900,000. Mr Fritsch soon came to regret the settlement.

Mr Fritsch’s solicitors subsequently sued him in the Supreme Court for outstanding fees of almost $104,000. He counterclaimed against his solicitors, his silk and his senior junior plus the accountant the solicitors had retained to assist in preparation of the Family Court case.

The Supreme Court case ran 25 days.

For today’s purposes let’s fast forward to the bottom lines.

The two barristers each settled with Mr Fritsch. The judgment records that they separately agreed to pay $90,000 towards his costs. They also agreed to waive the outstanding balance of their fees which totalled $35,000. The accountant also settled. He paid $60,000 towards Mr Fritsch’s costs (but successfully maintained his claim against the solicitors for his outstanding fees of $14,000.)  The barristers and accountant then all remained nominal parties to the litigation for the purposes only of liability apportionment.

But the solicitors fought on. They were ostensibly successful but the outcome is unlikely to be one they will boast about to prospective clients.

The court found that the lawyers were all concurrent wrongdoers. Mr Fritsch has suffered a lost opportunity to run and/or settle his case on a better basis.  The solicitors were found to be responsible for 75% of that loss (ie $675,000) and the two barristers jointly liable for the balance.

But now the kicker for which the case has received media attention. Bell J found that he was bound by authority to conclude that advocates’ immunity supplied a complete defence to the solicitors. Bell J (at para 1145) describes this as “a conclusion to which I am driven by binding authorities and find deeply troubling”.

And that wasn’t all. The solicitors’ claim for its outstanding bill was upheld against Mr Fritsch.


Next post –

Bell J’s thoughts on how the rule inJones v Dunkel applies to the unexplained failure of one defendant to call evidence from another defendant within the context of apportionable liability.

2 thoughts on “Advocates’ immunity revisited and regretted in the Supreme Court

  1. I find it very interesting that the Supreme Court would still feel morally compelled to castigate being bound by authority as against the solicitors when those solicitors had relied on retaining one of the leading silks and juniors ( senior though) at the time in the Family Law jurisdiction.

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