Editorial: An end to the legal posturing

Opinion

Lawyers fought all the way to the Supreme Court to retain their immunity from negligence claims in civil cases. In the process, they rolled out a series of much-exaggerated reasons they should still enjoy a privilege long since surrendered by other professions.

Had they succeeded, the public would continue to have been denied a remedy for the wrongs that lawyers commit in the conduct of court cases. Fortunately, the Supreme Court would have nothing of their posturing. The legal profession, it has ruled, could no longer be a law unto itself.

The verdict abolishes a common law rule, dating back to Napoleonic times, that barristers could not be sued for work they did in court and "other intimately connected work". The Bar Association and the Law Society, which strove to retain immunity, noted it put New Zealand out of step with Australia. But that country is, in fact, a peculiarity. Even Britain, the source of the immunity, did away with it four years ago.

This has not, contrary to the view of alarmists, led to a torrent of relitigated cases. People have not rushed to seek financial compensation from their lawyers when there was no realistic chance of success. Indeed, only a few negligence cases have been brought. This confirms that the vast majority of lawyers have nothing to fear from being placed on the same footing as other professions.

As with architects, dentists or any other professional, they are required merely to adhere to the normal and reasonable standards of a competent practitioner. Only a severe lapse in professional judgment can occasion a claim of gross negligence.

Equally, the original rationale for barristerial immunity has also become redundant. The practice dated from a time when the courtroom was uniquely adversarial, and lawyers had to think on their feet. Mistakes in such an environment were inevitable. Now, however, the pre-trial exchange of briefs and submissions has eliminated the element of surprise, and the necessity for barristers to live off their wits. In so doing, it has undermined lawyers' capacity to differentiate themselves from other professions in terms of accountability.

This point was at the nub of the Supreme Court's ruling. "No other professional group is immune from liability for breach of duties of care they owe to those they advise, treat or represent," it said. "In principle, all who undertake to give skilled advice are under a duty to use reasonable care and skill. An immunity which shields legal practitioners from liability for breach of that duty is anomalous." Any case for immunity required justification, and lawyers could not, for example, claim the status enjoyed by diplomats or heads of state.

In effect, the Supreme Court has said that professions must be held accountable, and that lawyers can be no exception. Whatever the defences raised by the profession - including, most recently, the difficulty of establishing who was at fault when a case was lost - they pale beside that principle. Indeed, the more the legal profession railed against the loss of immunity, the more its case was blighted by the strong whiff of self-interest.

The lawyers' predictions of horribly clogged civil courts could be sustained only if they conceded that they harbour an extraordinarily high number of bunglers within their ranks. Clearly, that is not so.

The vast majority of lawyers are intelligent enough, and astute enough, to be unworried and unaffected by this development. For those more prone to lapse, the risk of legal liability and public exposure should serve as a strong inducement to perform to a reasonable standard. As has long been the case for other professionals.