Dismantling Barristerial Immunity

Abstract

Much has already been written on the arguments for and against the judicial grant of immunity to barristers from negligence actions brought against them by their dissatisfied clients.1 This article does not seek to recite these arguments; rather, it contends that the public policy reasons which have traditionally been given for justifying the immunity may be satisfied without the grant of the immunity. I shall argue that barristers do owe a duty of care to their clients in the conduct of their cases in court. However, by virtue of the public policy reasons which have hitherto been relied upon to justify barristerial immunity, barristers' conduct should be measured against a special standard of care formulated by their own peers. Should this proposal prove too radical for judicial adoption, an alternative suggestion is made which retains the immunity but greatly restricts its scope.