In Rondel the House of Lords provided a number 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. Clients may, therefore, suspect incompetence where there is none, and the lawyer may be subjected to unwarranted claims. Furthermore, the threat of a malpractice action may have the detrimental consequence of causing a lawyer to put her duty to the client ahead of her duty to the Court in order to impress a client and immunize herself from the client's anger.

(ii) A duty of care may lead to defensive advocacy that may prolong litigation unduly. Lawyers may be tempted to impress their clients by calling more witnesses and asking more questions than is really necessary. That would not be in the interests of the client or the public.

(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. This adds a special complexity to the malpractice action.

(v)

The action in negligence may evolve into a supplementary and uncoordinated 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. [Note 157: The House of Lords also included in its reasons the fact that in England there are situations where a barrister may be obliged to represent a client. It is not clear why this would excuse a failure to take care, but in any event, it is a factor that is not relevant in Canada.]

The Court held that these reasons cumulatively justified the immunity.

The arguments against an immunity are spelled out in Demarco. Krever J. began his judgment by questioning, in the Canadian context, the cogency of some of the reasons given in Rondel. 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 jeopardized 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. Krever J. made note of the large number of lawyers in Ontario, the significant expansion of the legal profession, the number of inexperienced professionals who were in practice, all of whom have a right to appear before all levels of courts, and the fact that they are all protected by liability insurance. It was his opinion that in this socio-legal environment, "enlightened, non-legally trained members of the community" [Note 158: Demarco, above note 156 at 693. ] would not support an anomalous immunity for litigators. It would be inconsistent with the general accountability of all professionals to their clients, customers, and patients.

It is unlikely that the Supreme Court will uphold a litigator's immunity. The judgment in Demarco is both persuasive and powerful, [Note 159: 1 Wernikowski v. Kirkland, Murphy & Ain, [1999] O.J. No. 4812 (C.A.) (QL).] it is firmly grounded in the Canadian experience, it has been approved by the Ontario Court of Appeal and other Canadian courts, and it is consistent with the American cases. Nevertheless, some of the concerns expressed by the House of Lords are well taken insofar as they point to the difficulty of determining if a lawyer has, in the circumstances of the case, been negligent. Some latitude must be given to lawyers; litigation is not a precise science and in hindsight, decisions and tactics may be second-guessed and conclusions may be drawn that alternative approaches might have been more successful. It must be remembered, however, that there is no liability merely for mistakes and errors. The burden of proof on plaintiffs is a difficult one, requiring proof that the legal representation provided to the plaintiff failed to meet reasonable standards and current practices. If that burden is met, there does not seem to be any compelling policy reason to protect the defendant lawyer.

2) The Duty of Care to Non-client Third Persons

The issue of a duty of care to non-client third persons arises in two different situations. The first relates to situations where a lawyer is representing a client in respect of a transaction or a dispute with another person. That other person, in relation to the contract between the lawyer and her client, is a non-client third person. There may be situations where the lawyer owes a duty of care to that non-client third person as well as to her own client The second situation arises where a lawyer is retained by a client to engineer a transaction that is designed to bestow a benefit on a third person. The lawyer may be sued by the non-client third-party beneficiary if the transaction fails to achieve its purpose because of the lawyer's negligence. Each situation requires separate consideration.

Lawyers represent their clients in their dealings with third persons in a variety of situations including the negotiation of contracts, the drafting and reviewing of transactional documents, the settlement of disputes, and the conduct of litigation. The third persons may or may not be represented by counsel. In either case the general rule is clear. The lawyer's obligation is to her client alone. Moreover, it is not merely an obligation of reasonable care. There is, additionally, an obligation of fiduciary care entailing the most stringent obligations of loyalty, good faith, and devotion to the best interests of the client, including an obligation to avoid any conflict of duty. It is, therefore, unlikely that a lawyer will be held under a duty of care to any person other than her client. This general immunity in respect of third persons is also supported by the fact that the lawyer has, normally, assumed no responsibility to the non-client third person and it is not reasonable for the non-client to rely on the lawyer for advice or protection. It is generally understood that the lawyer is retained to protect the interests of the client alone. This position is illustrated by the English case of Gran Gelato Ltd. v. Richcliff (Group) Ltd. [Note 160: [1992] Ch. 560.] That case dealt with a conveyancing transaction between parties who were both legally represented. The plaintiff took an assignment of a sublease of a commercial property and spent a substantial sum of money developing it. The vendor's solicitors were asked if there were any unusual provisions in the head lease. They replied that there were none. But there was, in fact, a redevelopment break clause that diminished the value of the assigned interest substantially. It was held that the vendor's solicitor owed no duty of care to the purchaser.

There are, however, some exceptional situations where courts may recognize that a lawyer is under a duty of care to a non-client third person. This is more likely if the non-client does not have legal representation of his own. This was the situation in Granville Savings & Mortgage Corp. v. Slevin. [Note 161: [1993] 4 S.C.R. 279. ] In that case the plaintiff, Granville, agreed to make a loan to Smith, a client of the defendant solicitor. A condition of the loan was that it be secured by a first charge on property owned by Smith. Granville did not retain legal counsel to protect its interests in this transaction. It was content to hand over the money to the defendant on the understanding that the transaction would be carried out as agreed and that the mortgage would be a first charge on the property. The defendant was negligent in searching the title and what he believed to be a first charge was in fact a sixth charge. When the loan was not repaid, a number of actions were commenced by Granville, including an action in negligence against the defendant. In a short judgment, the Supreme Court reversed the Manitoba Court of Appeal and held that the defendant owed a duty of care to Granville. The Court concluded that there was a special relationship between the defendant lawyer and the plaintiff. The defendant had undertaken a responsibility in respect of the priority of the security and the plaintiff had reasonably relied on this undertaking. It might also be noted that the duty of care did not conflict with the interests of the defendant's client.

There is less likelihood of a duty of care being owed to a non-client third party who is legally represented in the transaction. There may, nevertheless, be special situations where a duty of care is owed. A lawyer may assume some responsibility or undertake to perform some task such as the answering of some questions, the provision of a certificate evidencing some course of conduct, or the giving of an assurance that would not conflict with the lawyer's duty to his own client. Reliance on those undertakings may in the circumstances be reasonable. Indeed, in the light of Granville, a case like Gran Gelato may be decided differently in Canada.

In addition to these situations, lawyers may also be under some obligation to third persons if they are aware of, or are alerted to, the fact that their client intends to embark on a course of violent or fraudulent conduct. [Note 162: See Bowles v. Johnston, Oliphant, Van Buekenhout & Deans, [1988] 4 W.W.R. 242 (Man. Q.B.).] The case law is not well developed on this point and it raises difficult issues of duties of affirmative action in favour of third parties and the confidentiality of the lawyer-client relationship. Nevertheless, if the danger to a third party is extreme, the legal framework of negligence is sufficient to establish a duty to take some action such as declining to represent the person, providing a warning to the third person at risk, or reporting the matter to the appropriate authorities. [Note 163: 1 See Jones, above note 148, where the Supreme Court recognized a "public safety exception" to the solicitor/client privilege. The Court did not deal with the issue of a duty to warn.]

The second situation arises when lawyers are engaged to engineer a transaction designed to secure some advantage or benefit to a third person. The best examples are "wills cases" where a lawyer, who has been retained by a testator to draft her will, has been held to owe a duty of care to the intended beneficiaries of the will. This is an aspect of the liability for the negligent performance of a contract of service canvassed earlier. In the context of contracts for legal services, it is as yet unclear if this duty extends beyond the wills cases to other kinds of legal services designed to provide benefits to third persons. There is some indication in the leading decision of White v. Jones [Note 164: Above note 90.] that wills cases are in a special category and that the principle in those cases may not apply to inter vivos transactions. Unlike the wills cases, the client may have a remedy against the lawyer and he may also be in a position to repair the damage caused by the failure of an inter vivos transaction. On the other hand, attempts in the past to restrict duties of care to special facts have often proved unsuccessful. If justice demands it, a duty of care is likely to be found.

3) Informed Consent to Legal Representation

Informed consent is a concept that was developed in the area of medical treatment to enhance and protect the patient's right to self-determination and autonomous decision making. The right to informed decision making has not, as yet, extended beyond the medical sphere to other professional relationships such as lawyers and their clients. Lawyers are, however, routinely advising their clients about various courses of action, each of which has its own risks and benefits. The client cannot determine which path of action is most consistent with his personal and financial interests unless full and reliable information is provided by his lawyer. The concept of informed decision making is not only consistent with a lawyer's ethical duties but may well be a legal obligation. This duty may be particularly pertinent in respect of the commencement, conduct, or settlement of litigation. An unsuccessful defendant may, for example, argue that he was not informed by his lawyer of the risk of substantial punitive damages being awarded against him when he decided not to settle the claim against him. The proof of a failure to provide material information of this nature may be negligent. The plaintiff client must, of course, prove cause-in-fact. The modified objective test would probably be used to determine if a reasonable person in the client's particular circumstances would have chosen a different course of action that would have avoided the adverse consequences suffered by him.

CHAPTER 3, SPECIAL TOPICS IN NEGLIGENCE