A solicitor's obligation under s 345 of the Legal Profession Act 2004 (NSW) to have a reasonable belief in reasonable prospects of success requires the solicitor to apply an independent professional mind to the claim and to counsel's advice; reliance on counsel's advice or expert reports does not satisfy s 345 where the advice is clearly adverse or the reports are patently flawed. A belief based upon inadequate examination of relevant material is not a 'reasonable belief'. Where proceedings are commenced in breach of s 345, costs may also be ordered under s 99 of the Civil Procedure Act 2005 as costs incurred 'without reasonable cause'. The question of whether a solicitor's tortious duty of care extends beyond the contractual retainer remains unsettled in NSW.
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