On the whole, legal malpractice cases are handled in much the same way as other professional liability cases. There are, however, three situations where special considerations apply. The first relates to the duty of care in the conduct of litigation. The second relates to the liability of lawyers to non-client third parties. The third addresses the concept of informed consent to legal representation.
In Canada, lawyers owe a duty of care to their clients in respect of all legal tasks that they undertake to perform. There has, however, been a good deal of debate in Commonwealth courts as to whether or not litigators ought to be under a duty of care to their clients in respect of the conduct of civil and criminal litigation. The issue of the litigator’s immunity or, as it is known in England, the barrister’s immunity illustrates again the need to balance divergent policy factors and the different manner in which they are balanced over time and between jurisdictions. The modern story of the litigator’s immunity begins in 1967 when the House of Lords in Rondel v. Worsley224confirmed the historic barrister’s immunity on the grounds that it was consistent with, and supported by, modern policy considerations. The Court provided a litany of reasons for the immunity. They included:
i) The lawyer owes a duty not only to the client but also to the court. When those duties conflict, the duty to the court overrides that owed to the client. This is a reality that may not be appreciated by disappointed clients.
ii) A duty of care may lead to defensive advocacy that may prolong litigation unduly.
iii) All the participants in a trial enjoy an immunity from civil liability and lawyers should not be excluded from that protection.
iv) An action for negligence in the conduct of a trial necessitates a trial within a trial because it must be determined if the defendant lawyer’s negligence in the first trial was a cause-in-fact of the plaintiff’s loss.
v) The action in negligence may evolve into a supplementary or collateral appeal process which may bring the administration of justice into disrepute.
vi) Advocacy involves difficult technical and tactical decisions that may have to be made without time for reflection and evaluation.
vii) Lawyers may face a floodgate of claims from dissatisfied and disappointed clients.225The Court held that these reasons cumulatively justified the immunity.
In Canada a litigator’s immunity has never been a part of negligence law. Nevertheless, when the issue arose a decade after Rondel in Demarco v. Ungaro,226 Krever J. thought it appropriate to review the reasoning in Rondel and reconsider the Canadian position. He found the reasons given in Rondel for the special protection of litigators more impressive in their number than their cogency in an Ontario context. He observed that there was no empirical evidence that lawyers in Ontario, who had been subject to a duty of care to their clients, had favoured the interests of their clients over their duty to the court. There was also no evidence that there was any prolongation of trials, defensive advocacy, or flood of claims in Ontario. He also noted that the need to relitigate the initial cause of action and the creation of a collateral appeal process may cause some difficulties but none of a magnitude justifying a denial of a remedy to the innocent victims of legal malpractice. Furthermore, the general immunity of the participants in a trial focuses primarily on the freedom from actions in defamation, a protection that is not jeop-
ardized by an obligation that counsel exercise reasonable skill and care on behalf of her client.
His decision did not, however, ultimately turn upon an evaluation of the reasoning of the House of Lords. It turned on his evaluation of what was in the public interest of the citizens of Ontario. Justice Krever made note of the large number of lawyers in Ontario; the significant expansion of the legal profession; and the number of inexperienced professionals who were in practice, all of whom have a right to appear before all levels of courts and are protected by liability insurance. It was his opinion that in this socio-legal environment, "enlightened, non-legally trained members of the community"227would not support an anomalous immunity for litigators. It would be inconsistent with the general accountability of all professionals to their clients, customers, and patients.
Demarco has been followed consistently by Canadian courts and recently it has been approved by the Ontario Court of Appeal in Wernikowski v. Kirkland Murphy and Ain.228The Court of Appeal emphasized the policy...