Back to Basics – The Scope of a Solicitor’s Duty of Care
In Boensch v Bingham (No 2) [2026] NSWSC 529, the Supreme Court of New South Wales dismissed all six professional negligence claims brought against a defendant solicitor, reaffirming the core principles that govern the scope of a solicitor’s duty of care. The decision confirms that a solicitor who acts within the scope of their retainer, reasonably relies on counsel’s advice and clearly documents the terms of their engagement will be well-placed to defend claims of this kind.
What did the plaintiff allege against his former solicitor?
The plaintiff commenced proceedings against his former solicitor (the solicitor), alleging multiple breaches of common law and contractual duties of care and relevant provisions of the Legal Profession Uniform Law (NSW).
The plaintiff alleged six distinct breaches against the solicitor, each arising from different stages of three previous legal proceedings in which the solicitor had acted for the plaintiff.
The first claim. The plaintiff alleged the solicitor breached his contractual and common law duty of care by failing to advise the plaintiff not to pursue a special leave application or appeal to the High Court of Australia, on the basis that both were likely to fail.
In the second claim, the plaintiff alleged the solicitor failed to act promptly in seeking to set aside a bankruptcy notice within the 21-day limitation period, and the failure to do so caused him loss and damage.
In the third claim, the plaintiff alleged the solicitor informed the Court that parts of a cross-claim were not being pursued, without instructions and without having given advice.
In the fourth claim, the plaintiff alleged the solicitor sought to have his costs assessed at an amount exceeding a cap contained in the costs agreement and an alleged oral agreement limiting costs to $100,000.
The fifth claim sought exemplary damages for the solicitor’s conduct in relation to the costs agreement.
The sixth claim sought to disentitle the solicitor to remuneration, on account of the other alleged breaches.
What legal principles govern a solicitor’s duty of care?
The Court reaffirmed a number of established principles governing the standard of care applicable to solicitors:
A solicitor owes a duty to exercise reasonable care and skill in both tort and contract, assessed by reference to the standard of a qualified, ordinarily competent and careful lawyer practising in the relevant field.1
A solicitor will be liable for failing to take precautions against a foreseeable, not insignificant risk of harm that a reasonable person in the solicitor’s position would have taken, having regard to the probability and seriousness of that harm and the burden of taking precautions.2
The nature and extent of the duty in any particular instance depends on the circumstances: the use of hindsight must be avoided.3
Litigation is inherently uncertain; cases can be lost notwithstanding the diligence and care of the lawyers involved.4
A solicitor is not generally obliged to repeat advice already given, nor to advise on matters already known to the client.5
Ordinarily, a solicitor in general practice is entitled to act in accordance with counsel’s advice in an area calling for specialist expertise.6
How did the court analyse each claim?
First claim: The High Court application
The NSWSC found it was reasonable for the solicitor to rely on counsel’s advice to the effect that while the prospects of special leave were low, the prospects of an appeal (if leave was granted) were good. The advice was not “obviously or glaringly wrong”.
Accordingly, the plaintiff did not establish a breach of the duty to exercise reasonable care.
On causation, the NSWSC was not persuaded that even if different advice had been given, the plaintiff would not have proceeded with the appeal, given his willingness to persist with the special leave application despite being informed of the low prospects of success.
Second claim: Bankruptcy proceedings
The NSWSC found that on a proper reading of the relevant correspondence, the solicitor never accepted instructions to act for the plaintiff in the bankruptcy proceedings, which were therefore plainly outside the scope of his retainer.
Third claim: Acting without instructions
The evidence did not establish the solicitor acted without instructions to withdraw relevant aspects of the plaintiff’s cross-claim. In fact, the Court found that the decision not to press parts of the cross-claim was a strategic legal decision. The NSWSC also found the plaintiff had failed to identify any disadvantage suffered as a result of not pursuing those claims.
Fourth claim: Costs agreement
The plaintiff alleged an oral agreement capping recoverable costs at $100,000. This aspect of the claim was precluded by the doctrine of Anshun estoppel, on the basis that the claim was in substance the same as relief claimed in a previous cross-claim, which the plaintiff was therefore precluded from reagitating.
Fifth claim: Exemplary damages
Notwithstanding the estoppel finding on the fourth aspect of the claim, the NSWSC was satisfied that, although mistaken, the solicitor’s conduct in seeking to enforce his costs agreement before a time specified in the terms of the retainer, did not amount to conscious wrongdoing in contumelious disregard of the plaintiff’s rights, conduct that would, in isolation, have supported an award of exemplary damages.
Sixth claim: Forfeiture of remuneration
The NSWSC found the plaintiff had not identified what breaches of the Legal Profession Uniform Law would disentitle the solicitor to his costs, and even if the plaintiff had proved a breach, it would not result in forfeiture of all remuneration. At minimum, the solicitor would retain an entitlement to recover his fees on a quantum meruit basis, subject to the terms of the costs agreement.
What was the outcome?
All six allegations were successfully defended and the plaintiff was ordered to pay the solicitor’s costs.
What are the key takeaways for solicitors?
This decision is a useful reminder for legal practitioners and their insurers of the parameters of a solicitor’s duty of care and the following key principles:
Reliance on counsel’s advice: Provided counsel’s advice is not obviously or glaringly wrong, a solicitor in general practice who acts in accordance with that advice will not be found to have breached their duty of care. Solicitors should ensure any such advice is communicated to the client and documented.
Scope of retainer is paramount: Where work falls outside the express or implied scope of the retainer, a solicitor will ordinarily have no duty to act. However, solicitors should ensure the scope of the retainer is clearly and precisely defined in the engagement letter or costs agreement.
Causation remains a significant hurdle for plaintiffs: Even where a breach of duty can be established, the plaintiff must prove the breach caused the loss and causation is often difficult to establish.
Anshun estoppel as a substantive defence: Claims that could and should have been raised in antecedent proceedings may be precluded by Anshun estoppel. This is a powerful tool where there is a history of prior litigation between the parties.
Disentitlement to fees requires more than a technical breach: Section 178 of the Legal Profession Uniform Law (NSW) does not operate as a blanket disentitlement to fees upon any breach. At minimum, a solicitor is likely to retain a quantum meruit entitlement, subject to any relevant contractual limitation.
Article references below.
Authored by Mark Brookes of Carter Newell
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Mark is an expert in professional and directors’ and officers’ liability – acting as both coverage and defence counsel for some of the world’s largest insurers and their insureds for more than 30 years.
Mark is also a Nationally Accredited Mediator (AMDRAS) with experience in mediations involving a wide range of commercial disputes, having first been accredited in 2003.
With specialist expertise in third party liability policies – including professional liability, directors’ and officers’ liability, medical malpractice, management liability, statutory liability and employment practices liability – he advises insurers on coverage and defends civil and regulatory proceedings and disciplinary complaints in the mutual interests of insurers and their insureds.
Mark’s practice primarily involves resolving complex, multi-party and high value disputes involving allegations of negligence, breach of contract, misconduct, fraud and Australian Consumer Law and Corporations Act breaches.
Mark is well known in the insurance and legal industries and to their key participants, including barristers, mediators and insurance brokers, and enjoys a reputation of being accessible, commercial, pragmatic and client focused.
Having practised in multiple jurisdictions – including in London from 1994 until 2000 – Mark has strong relationships within and outside Australia, especially in the London market. He is a nationally accredited mediator, a twenty-year committee member and past president of the Queensland Chapter of the Australian Professional Indemnity Group, a director of Insurance Law Global and a member of the Australian Insurance Law Association. Mark also serves on the Queensland Law Society’s Dispute Resolution Committee, is a volunteer pro-bono mediator for the Supreme Court of Queensland and is listed on the Queensland Law Society register of mediators.
1 Astley v Austrust Ltd (1999) 197 CLR 1; Hawkins v Clayton (1988) 164 CLR 539.
2 Civil Liability Act 2002 (NSW) s 5B.
3 Jones v Bartlett (2000) 205 CLR 166; Hall v Foong (1995) 65 SASR 281 at 304.
4 Boland v Yates (1999) 167 ALR 575.
5 Shoal Bay Beach Constructions No 1 Pty Ltd v Mark Hickey & the persons listed in Schedule A to the Notice of Appeal (t/as Sparke Helmore) [2023] NSWCA 23.
6 Lucantonio v Kleinert [2011] NSWSC 753.