General Negligence will cause concurrent liability in tort and contract (retainer), Purpose – and may be liable in tort independently of an action in contract (HofL) Henderson v Merrett Syndicates Ltd (HCA) Astley & Ors v Austrust The law implies into contracts for services a promise to exercise Contract – reasonable care and skill The existence of concurrent liability in tort and contract may be but it ‘untidy’ is not objectionable because tortious duty is imposed by law and contractual duty by the will (express of implied) of the parties: Henderson v Merrett Syndicates Ltd (HofL) Astley & Ors v Austrust (HCA) Whoever is listed in the retainer agreement is a party to the contract with Retainer – the client and is therefore relevantly liable. Solicitors are vicariously liable in tort for negligent work Vicarious Liability – done for a client by an employee in the course of employment. Solicitors remain liable, jointly and severally with other Joint Tortfeasors – involved professionals (eg accountants) for any loss occasioned by bad advice Appointing counsel: A duty of care does not end Duty of Care when appoint Counsel – solicitor’s when appointing a counsel in the case. A solicitor lacking specialist expertise Solictor cannot blindly follow counsel – in a field is entitled to rely more heavily on advice, but cannot counsel’s blindly follow the advice. The solicitor must still turn her or his Turn their mind to the case – mind to the issue under consideration and exercise independent judgment Yates Property Corporation (in liq) and Anor v Boland – Solicitors with expertise in the area Standard is raised for Expert Solicitors – of law concerned cannot rely on counsel to the same extent as solicitors lacking that expertise Yates Property Corporation (in liq) and Anor v Boland – If barrister makes error Solicitors can be joint tortfeasors of barristers – solicitor does not loose liability Yates Property Corporation (in liq) and – Anor v Boland
General Purpose – Negligence will cause concurrent liability in tort and contract (retainer), and may be liable in tort independently of an action in contract Henderson v Merrett Syndicates Ltd (HofL) Astley & Ors v Austrust (HCA) Contract – The law implies into contracts for services a promise to exercise reasonable care and skill The existence of concurrent liability in tort and contract may be ‘untidy’ but it is not objectionable because tortious duty is imposed by law and contractual duty by the will (express of implied) of the parties: Henderson v Merrett Syndicates Ltd (HofL) Astley & Ors v Austrust (HCA) Retainer – Whoever is listed in the retainer agreement is a party to the contract with the client and is therefore relevantly liable. Vicarious Liability – Solicitors are vicariously liable in tort for negligent work done for a client by an employee in the course of employment. Joint Tortfeasors – Solicitors remain liable, jointly and severally with other involved professionals (eg accountants) for any loss occasioned by bad advice Appointing counsel: Duty of Care when appoint Counsel – A solicitor’s duty of care does not end when appointing a counsel in the case. Solictor cannot blindly follow counsel – A solicitor lacking specialist expertise in a field is entitled to rely more heavily on counsel’s advice, but cannot blindly follow the advice. Turn their mind to the case – The solicitor must still turn her or his mind to the issue under consideration and exercise independent judgment – Yates Property Corporation (in liq) and Anor v Boland Standard is raised for Expert Solicitors – Solicitors with expertise in the area of law concerned cannot rely on counsel to the same extent as solicitors lacking that expertise – Yates Property Corporation (in liq) and Anor v Boland Solicitors can be joint tortfeasors of barristers – If barrister makes error solicitor does not loose liability – Yates Property Corporation (in liq) and Anor v Boland
Ethics_Summary.docx