The Requirement that Lawyers Certify Reasonable Prospects of Success: Must 21st Century Lawyers Boldly Go where No Lawyer has Gone Before?

Legal Ethics 13 (1):1-38 (2010)
Abstract
There is a growing trend in Australia to require lawyers to certify reasonable prospects of success for the cases they bring and defend. New South Wales has led the way with the Legal Profession Act 2004 (NSW) Pt 3.2 Division 10 requiring legal practitioners to certify reasonable prospects of success in all claims for damages. The requirement places a significant onus on lawyers to make a judgment about the merits of a case before it is begun, yet the common law has long provided mechanisms to ensure that cases without prospects of success do not go to trial. This article considers Australian legislative provisions requiring lawyers to certify reasonable prospects of success of cases. It examines the application of the NSW legislation by the courts highlighting the difficulties of interpretation of what constitute 'reasonable prospects of success' and the application of the legislation in the context of the dynamic litigation process. It is argued that these legislated obligations on lawyers will have a detrimental effect on access to justice by denying parties, in particular plaintiffs, the opportunity to have their cases properly and fully determined in the courts. This article examines common law mechanisms for dissuading cases without prospects and argues that the general law is an effective system for ensuring that cases without prospects of success are not maintained. The Australian experience is instructive for consideration of optimal reform packages for the administration of justice and to evaluate the role of any litigation lawyer within the judicial and court process
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