The Requirement that Lawyers Certify Reasonable Prospects of Success: Must 21st Century Lawyers Boldly Go where No Lawyer has Gone Before?
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Ezio Di Nucci
Jonathan Jenkins Ichikawa
Jack Alan Reynolds
Learn more about PhilPapers
Legal Ethics 13 (1):1-38 (2010)
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
|Keywords||No keywords specified (fix it)|
|Categories||categorize this paper)|
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library|
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Suzanne le Mire (2011). Testing Times: In-House Counsel and Independence. Legal Ethics 14 (1):21-47.
Steven K. Berenson, Government Lawyer as Cause Lawyer: A Study of Three High Profile Government Lawsuits.
John Lande & Forrest Steven Mosten, Collaborative Lawyers' Duties to Screen the Appropriateness of Collaborative Law and Obtain Clients' Informed Consent to Use Collaborative Law.
Ellen Yaroshefsky, Military Lawyering at the Edge of the Rule of Law at Guantanamo: Should Lawyers Be Permitted to Violate the Law?
M. B. E. Smith (1990). Should Lawyers Listen to Philosophers About Legal Ethics? Law and Philosophy 9 (1):67 - 93.
Jessica Price, 'Don't Be Beguiled': Gender, Inside-Outsiders, and Justice in the Stories of Lowell B. Komie.
Added to index2010-08-16
Total downloads11 ( #381,617 of 1,925,507 )
Recent downloads (6 months)1 ( #418,235 of 1,925,507 )
How can I increase my downloads?