How much law must a lawyer know?
There are a million laws: parliamentary acts, rules, regulations and the common law. How much law must a practising lawyer know? This question was answered when a tramcar crashed into a horse-drawn wagon. The year was 1916. Read on…
Fletcher & Son was a transportation outfit in Bradford, England. It hauled goods using horse-drawn wagons. It was managed by a driver.
In late 1916, one of its wagons was travelling on Huddersfield Road.
It was loaded with goods of a third party.
Moving towards it, on the other side of the road, was a tramcar. The tramcar was operated by the Bradford Corporation.
Bradford Corporation was a public body – just like your local council, e.g., MBPJ in Malaysia, the Nottingham City Council, or the Waikato government region in New Zealand.
A corporation employee drove the tramcar.
Because of his negligence, the tramcar crashed into the wagon.
The wagon driver and the horse were injured.
The goods in the wagon were also damaged.
The wagon’s owners appointed a firm of solicitors Jubb, Booth & Helliwell to sue the corporation.
The law required the wagon owners to sue the public corporation within six months: by 10 March of the following year.
A statute, the Public Authorities Protection Act 1893 said so. [Incidentally, this Act was the forerunner of the Malaysian statute of an identical name].
The day after the accident, the solicitors wrote to the Corporation. They demanded compensation. The Bradford Council’s staff replied, accepting liability.
The parties haggled about the amount of compensation. This took them well past the six months.
In the third week of July 1917, the lawyers sued the local authority.
The corporation argued that any claim had been ‘time-barred’.
The County Court agreed.
It dismissed the wagon owner’s claim.
This upset Messrs. Fletcher & Son.
So, they did something then considered unusual: they sued their lawyers.
Grappling in the No-Man’s-Land
Long before the turn of the 20th century, judges were grappling with a serious difficulty.
When was a lawyer to be found remiss?
They surveyed the law: on the one side lay a body of well-known, well-mapped areas of law.
These determined what kind of conduct made a lawyer a good lawyer.
On to the other side lay a No-Go area.
It listed the kinds of bad conduct that no lawyer should engage in.
Between these two thin strips lay a vast, constantly moving area of darkness. This No-man’s-land represented lawyers’ conduct which were uncertain.
The English judges could not, within this No-Man’s Land, differentiate between what was an acceptable standard of professional conduct and what was odious.
The opportunity came decades later, when the tramcar crashed into the wagon.
Wagon owners: “How much law must a lawyer know?”
When the wagon owner’s new lawyers sued their lawyers, they raised this important question.1Fletcher& Son v. Jubb, Booth & Helliwell  1 KB 275[/mfin]
The judges fell back on history.
A case in 1830, Godefroy v. Dalton, summarised the old law. It ruled that it would be quite difficult to define the exact limit by which a solicitor must be bounded by his skill and diligence.16 Bing. 460
In that case, the judges thought that it was difficult, “to trace precisely the dividing line between that reasonable skill and diligence”, which would be necessary for a lawyer to show to his client, and the “other side of the line”: a line which the judges described as crassa negligentia (‘fraud’ or ‘dishonesty’), or lata culpa (‘grave fault’).2perTindall CJ
The judges thought that it was a “question of degree”.
And they thought there was “a borderland” within which it was difficult to say whether a breach of duty had been committed.
The judges were speaking, of course, of the No-Man’s-Land.
And they implicitly said that unless a lawyer had committed fraud or had made a horrible error, he was not liable.
What level of legal knowledge is a lawyer expected to have?
Eventually the judges could not dodge the question.
In the Bradford wagon case, they answered it. This is what they said:
“Now it is not the duty of a solicitor to know the contents of every statute of the realm. But there are some statutes which it is his duty to know.”
“So, a lawyer needn’t memorise every Act of Parliament or every regulation and rule.
However, the three judges in the wagon owner’s case felt that by 1919, there were many cases where public authorities were being sued.
The judges felt that lawyers practising in that area of law needed to be conversant with that one statute that mattered: the Public Authorities Protection Act 1893.
Lord Justice Scrutton – who asked and answered the question – said:
“What is the duty of a solicitor who is retained to institute an action which will be barred by statute if not commenced in six months? His first duty is to be aware of the statute”.
So, the case laid down a general principle
Where a lawyer advises his client on a contract, or drafts one, or institutes, or defends a litigation case, it is his duty to know the law in that area.
He may know nothing of medical law or commercial law of merchants: that was excusable, so long as he was not practising in those areas.
“If a lawyer practised in a particular area, he needs to know it well.
Is mere ‘awareness of the law’, enough?
Yet a mere awareness of the law will not cut it.
Something more was needed.
Lord Justice Scrutton stated that:
“His next (duty) is to inform his client of the position.”3Ibid
So, it was not quite enough for the wagon owner’s lawyers to know about the statute of limitation. It was their duty to advise their client how the client’s rights would be affected by it. If the solicitors did not do that, they would be negligent.
“Every lawyer must know and know how to apply correctly, the relevant law.
The Muar Miranda case, 50 years ago
More than 50 years ago in Muar, one Mr. Khoo used a cheque in a transaction.
He found himself at the wrong end of a suit at the sessions court.
Khoo sought the services of a local lawyer, Mr. Miranda, to defend him.
The defence failed.
Miranda, as instructed, lodged an appeal.
Now, litigation papers have to be filed in time.
There is procedural law on how appeals are to be filed.
“If a lawyer fails to file courts papers in time, he can get into serious trouble.
Here, having timeously filed a notice of appeal, Miranda did not file Khoo’s Memorandum of Appeal in time.
On that ground Khoo’s appeal failed.
Khoo sued Miranda in negligence.
“My clerk’s mistake is not my mistake”
Miranda argued that the law concerning this area had changed.
He complained that his clerk, who usually filed all the firm’s papers, had been ignorant of the change in law.
He said the clerk’s error could not be imputed upon him.
The Federal Court accepted the principle in the wagon owner’s case.4Fletcher& Sons, supra
As Miranda was a litigation lawyer, he was expected to know well the rules relating to litigation procedure.
Roman law 2500 years ago
Roman Civil Law is the acknowledged mother of English common law.
The Roman Empire ended more than 1,500 years ago.
It had lasted for over 1,000 years.
Even in those days, the laws were said to be exceedingly complex.
Writing of the complexities of Roman law, the famed historian Edward Gibbon observed:
“I enter with just diffidence on the subject of civil law, which has exhausted so many learned lives, and clothed the walls of such spacious libraries.” 5Gibbon, Edward, ‘Decline and Fall of the Roman Empire’, Chapter 44, ‘Fall in the East’, ‘The Roman or Civil Law’
He wrote these words at least 230 years ago!
After 1,500 years, the laws of nations practising modern democracy have not become simpler – or less numerous.
“In the UK alone, more than 3,500 laws were passed last year – and that was in one year…
Current laws have become a myriad endless labyrinths
So to expect a lawyer to know all the law is a Herculean task.
It is easier, it is said, to attempt to empty the ocean with a teacup.
So, for the moment, the Fletcher & Son principle still stands: a lawyer only needs to know most of the law in the area that he practises.