However sound the policy may be, it might be regarded as tough on clients where the standard of advocacy was in fact poor. The possibility that such poor advocacy might support disciplinary action is likely to be little comfort to clients and in any event the limit of the disciplinary regime in relation to the otherwise unactionable conduct of advocates is yet to be fully tested. Likewise the immunity from suit can be tough on solicitors because of a view that immunity prevents solicitors obtaining contribution from the negligent advocate. At least in some jurisdictions, liability can be apportioned between professionals and in some cases the advocate's insurer may be persuaded to make a contribution without admission. Reducing exposure The upshot of all this is that solicitors are very exposed to allegations of liability for counsel's poor performance or, as a result of the conduct of counsel, they can be caught up in the disciplinary system.
Solicitors can implement effective risk management in the following ways.
Some independent assessment of counsel's experience and performance is called for. Typically the system includes selection criteria and performance monitoring. No matter how convenient for the solicitor or acceptable to the barrister, the brief should be more than a backsheet on the file. If counsel is to do the job properly the brief must include a fair representation of the facts and available evidence, not present a one-sided or incomplete account. Solicitors should be wary of counsel who are not open to challenge or who do not value their instructing solicitor's views.