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North Cyprus Law | Can You Take Legal Actions Against Advocates For Negligence?

Can you take legal actions against Advocates for negligence?

As I have explained in an other article I wrote, in general the legal definition in Civil Law for Negligence consists of doing some act which in the circumstances a reasonable prudent person would not do or failing to do some act which in the circumstances such a person would do, or failing to use such skill or take such care in the exercise of a profession, trade or occupation as a reasonable prudent person qualified to exercise such profession, trade or occupation would in the circumstances use or take, and thereby causing damage.

Where special skill is required for the work to be done, a reasonable man/women would not be expected to attempt it unless he is capable of performing it by possessing such special skill, in which event he is bound to exercise the skill and competence of an ordinarily competent practitioner in that profession. Every person who enters into a learned profession undertakes to bring to exercise of it a reasonable degree of care and skill. He or she does not undertake, if he/she is an Advocate, that at all events you shall gain your case, nor does a surgeon undertake that he will perform a cure ; nor does he/she undertake to use the highest possible degree of skill. There may be persons who have a greater advantage than he/she has i.e. the knowledge of more than one language etc, but he/she does undertake to bring a FAIR, REASONABLE AND COMPETENT DEGREE OF SKILL. Of course what I mean by undertake here, usually, is impliedly undertaking. In other words, it is sufficient if a person exercises the ordinary skill of an ordinary competent person exercising that particular calling, art or job. I must add that, where a person holds himself out to be competent to do some special kind of job an action for negligence will lie for damage caused by the failure to exercise due care and skill by proving either that the defendant did not posses the requisite skill or by showing that, although he possessed it, she/he didn’t exercise it in the particular case.

This duty to exercise reasonable care and skill is applicable to every man exercising a skilled trade or business and everyone practising a calling involving personal skill, such as: accountants, architects, engineers, dentists, surgeons, doctors, veterinary practitioners, estate agents etc.

Well what about Advocates?

As you all know by now Advocates in the TRNC are qualified to the duty which a Solicitor and a Barrister-at-Law would do in the UK and Lawyers or Attorneys would do in parts of the USA or other parts of the world. I think that that’s the reason why some call Advocates in the TRNC, Solicitors, Barristers, Lawyers or Attorneys. In the TRNC the proper word is Advocate in Turkish the word is Avukat.

On many occasions I also have explained in general that, in law, most general rules do have exceptions. If an Advocate commits fraud, in my opinion there are no exceptions or in other words the Advocate is not immune. But is that the case in professional negligence? GENERALLY speaking, I think that an Advocate is immune from an action for negligence at the suit of a client in respect of his/her conduct and management of a case IN COURT or what he says in court, whether criminal or civil and whether at first instance (i.e. at the District Court) or on appeal and for some preliminary work such as preparing pleadings unless it is done without the clients consent and/or instructions in which case, in my opinion, there is negligence and there is liability. In other words I don’t think they should and could be liable for damages when engaged on a litigious matter. I would say that, this immunity is or should be based on public policy because the administration of justice in the TRNC requires that an Advocate should be able to carry out his duty to the court and his/her client fearlessly and independently, also actions for negligence against Advocates in such circumstances would make, if in the circumstances it is possible, the retrying of original actions inevitable and so prolong litigation, contrary to public interest and also that an advocate may accept any client, however difficult, who sought her/his services. In other words to be able to protect the good and decent Advocates and the people, the bad Advocates may at times get away with it. HOWEVER, I do think that public policy doesn’t require that an Advocate should be immune from action for negligence in relation to most non-litigious matters. In this circumstance, if an Advocate failed to exercise the ordinary care and skill that can reasonably be expected from an Advocate, the Advocate is in no better position than any other professional person. In other words, Advocates are bound to exercise a reasonable degree of care, skill and knowledge in all legal business they undertake which are non-litigious. There liability to their client arises out of contract. I have explained in another article of mine that contracts can also be verbal and implied at times. This subject deals with implied contracts. The exact duty of an Advocate depends on what he/she is retained to do. The standard of care and skill which can be demanded from an Advocate is that of a reasonably competent and diligent Advocate. Therefore, I would say that it is not enough to prove in court that the Advocate has made an error of judgment or shown ignorance of some particular part of Law, but that it must be shown the error or ignorance was such that an ordinarily competent Advocate would not have or shown it. Of course it MAY BE negligence on the part of an Advocate to be ignorant of the Law applicable to the case (i.e. if a case regarding a mortgage came in front of an Advocate not knowing the mortgage law and advising a client using its contents), but, an Advocate or even a Judge is not bound to know all the Law which I know is impossible because it is such a wide area. Although an Advocate is not bound to know all the contents of every statute of the TRNC, I think there are some statutes which are the Advocates duty to know. I think the test for what the Advocate ought to know is to apply the standard of knowledge of a reasonable competent Advocate. I.e. I would say that not knowing the basic Rules of Court or Civil Procedure Rules or the statute of limitations etc in the TRNC is ignorant.

In contentious matters or doubtful points, I think it is the duty of an Advocate on taking his/her client’s instructions to ascertain the relevant facts so as to enable her/him to form an opinion as to whether or not there is a right of action. If the Advocate comes to the conclusion that there is no cause of action he/she should advise his/her client, but if, notwithstanding that advice, the Advocate is instructed to proceed with the action he/she is under no liability for negligence. In non-contentious matters, I think, the duty of an Advocate depends on the nature of the transaction which he is carrying out on behalf of his/her client. I have explained the standard of care and skill an Advocate should take but to be more specific I think it would be sufficient for me to give some examples which I think that an Advocate can be held negligent for as follows; when acting for a purchaser of property, not warning him/her that he/she was obtaining only a possessory title to the land, not explaining the nature and terms to purchase land in the TRNC, NOT MAKING THE USUAL SEARCHES on the property before signing the sales contract, failing to inform his/her clients that a local search showed that plans of the building erected on the land his/her client were thinking to buy had not been approved by the local authority, when acting for the purchaser of property failing to discover and inform there was a mortgage etc on the property. I would add that, an advocate is under a duty to take reasonable care of all documents entrusted to him by his/her client and not to disclose confidential information communicated to him/her. For breach of this duty the Advocate shall be liable for any damage suffered by his/her client resulting from the breach. Also an Advocate is under a duty to advise his/her client on law but not, unless he expressly undertakes to do so, on matters of business. As you can see from the above written I think that it is essential that an Advocate must COMMUNICATE with his/her client in all circumstances.

Is there a time limitation to sue an Advocate?

In my opinion, in the event of a breach of the Advocates contractual duty towards his/her client, the action for breach of contract against a negligent Advocate must be brought within six years from the date of the breach alleged.

Who does an Advocate owe a duty to?

Generally, I think an Advocate owes no duty to a person who is not his client, and is not normally liable for damages to anyone but his client, except, for example, in cases where an Advocate who gives upon request any advice or material information negligently, whether gratuitously or not, to a non-client then if he has reason to believe that such is going to be acted upon, in the absence of a clear disclaimer of responsibility he may well be liable should loss or damage be suffered as a result by the non-client. These are all the reasons why on most occasions I ask for more relevant facts and prefer to write generally about a subject or use the words at first instance or prima facia when writing on the internet or on the facebook group page to people which I haven’t even met or are not friends with me on facebook etc. Of course if I know all the relevant facts and circumstances of the situation or question asked then I do not have a problem with giving out specific legal advice and replying legal issued questions which have been asked. Which most of the time would mean that I must meet them and speak face to face or in other words meet them in person at a meeting.

I must add that I can argue everything written above in a TRNC court as an Advocate, and in most cases I have heard of I think there would be a cause of action against some Advocates, but, as I am an Advocate and not a Judge and for various other reasons, I must say that the above written is of opinion only and that it is for the judge to decide after Advocate’s like me which are prepared to do so put the relevant facts and circumstances of the case down in court on behalf of there client(s).

Legal Eagle

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