Lawcovernotes December 2016

Briefing counsel better Over-reliance on counsel is all too frequent in claims-prone practices. Even briefing the best counsel will not cover a solicitor practising outside of their area of expertise. It is essential that solicitors use their own professional judgment and understand that reliance on counsel’s advice will rarely be sufficient defence to a claim of negligence. While it is acceptable for solicitors to seek specialist counsel in areas outside their own expertise, they should disclose to both client and counsel the limits of their own knowledge. In one Lawcover claim, the solicitor ran a general legal practice doing mainly conveyancing, wills and estates and family law. In the past, they had declined clients with commercial transaction/contract matters as they were not confident that they had the necessary knowledge or experience in the area. However, facing difficulties in maintaining a viable practice, the solicitor agreed to advise a developer on various contractual issues the latter was having with the subcontractors in his latest project. The solicitor considered the client may be a good source of business for the future and, with a little help from solicitor colleagues and by briefing counsel, that they could handle the matter. When presented with a large and complex contracts dispute, the solicitor realised that this was outside their expertise, so decided to brief counsel. However, due to the solicitor’s limited understanding of the matter, the brief was inadequate, as was the subsequent advice from counsel. The client relied on the advice and suffered a significant loss, prompting a claim against the law practice which Lawcover had no option but to settle. Claims prevention tips: ^ ^ Always exercise independent professional judgment and don’t solely rely on counsel ^ ^ Disclose to counsel your own level of familiarity with the subject of the brief ^ ^ Adequately brief counsel. The observations on the brief should include any specific requests for advice or drafting and also a request for advice on any other matters required to protect the client’s interests ^ ^ Draw counsel’s attention to any specific matters of concern. If counsel’s advice fails to respond to those matters, seek clarification ^ ^ Confirm that the brief has been accepted ^ ^ Question counsel’s advice when it appears doubtful ^ ^ Monitor compliance with court timetables ^ ^ Do not relinquish responsibility to counsel on the conduct of thematter and any settlement offers Milica Milutinovic Claims Solicitor 10.