Solicitors owe a duty to assess whether a client has mental capacity to give instructions, and taking instructions from a client the solicitor should know lacks capacity constitutes negligence. However, advocates' immunity as established by the High Court in Giannarelli and D'Orta-Ekenaike extends to cover such negligence where it occurs in the course of work intimately connected with the conduct of a case in court, including settlement negotiations at the door of the court. The court expressed deep discomfort with this result, suggesting the immunity may be too broad in this context. For proportionate liability purposes under Part IVAA of the Wrongs Act 1958 (Vic), barristers who also negligently take instructions from an incapacitated client are concurrent wrongdoers.
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