Professional Negligence
8. Lawyers & Negligence
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 24 Aug 2015
- All members of the legal profession owe clients a duty to act with reasonable care and skill. It is often very difficult for a client to judge whether their legal practitioner has been negligent in their work.
- A client may bring a case of professional negligence against a legal practitioner if during the course of providing professional services the legal practitioner acted negligently or failed to exercise the expected level of professional care.
- A lawyer may have acted negligently if they lacked professional skill and knowledge in an area where they claimed particular skills or could reasonably be expected to possess such skills.
- For example if a lawyer was acting for you in a purchase and sale matter and did not understand that a contract of sale must be stamped by the Office of State Revenue before settlement then this may be seen as lacking professional knowledge in an area where they ought to have that knowledge.
- A lawyer may have failed to exercise professional care in situations such as:
- failing to meet time limits for submission of court documents; or
- where a lawyer fails to carry out necessary searches to protect their client’s interest in a property.
- In Australia courts have determined that negligence may be considered as unsatisfactory professional conduct or professional misconduct if it is more than mere carelessness or simple negligence.
- Apart from meeting the necessary requirements to make out a negligence case the client must also show that they have incurred a financial loss as a result of the lawyer’s negligence.
- If you believe your legal practitioner has acted negligently in your legal matter you should get legal advice from a specialist about whether you have a case and how to pursue it under the law of your state or territory.
- In New South Wales the appropriate organisation to lodge a complaint against a legal practitioner is the Office of the Legal Services Commissioner (OLSC). Clients who wish to seek compensation from a lawyer usually have to take private legal action for professional negligence.
- Legal action can be commenced in the Consumer, Trader and Tenancy Tribunal for claims of under $25,000 or through a court.
- Clients can lodge a complaint with the OLSC while simultaneously commencing a private action for professional negligence. Lodging a complaint through the OLSC will generally result in your participation in a dispute resolution procedure or disciplinary action against the professional. A successful claim for professional negligence usually results in a court order for damages.
- Litigation can be expensive and take a long time to be determined in court. More commonly such matters are settled outside court in a shorter time period.
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