(2012) 3 St. John’s Journal of International and Comparative Law (Forthcoming)

Abstract: This paper compares the American practice of requiring an attorney to pay personally the fees of an opposing party where the attorney has been found to improperly conducted himself or herself to analogous practices in two other common law jurisdictions, England and Canada.

Comparing the law in this area in England and Canada to the law in the United States is a useful endeavor because each country shares in the common law tradition but also differs from each other in material respects. Unlike the United States, both England and Canada implement a “loser pays” system of costs. Further, England has historically differed from Canada and the United States in its approach to lawyer regulation insofar as, until very recently, English law recognized the doctrine of “advocates’ immunity.” Under this doctrine both barristers and solicitors enjoyed significant immunity from liability to clients in negligence.

Given these material differences among the three countries, one might predict that each country would employ a unique approach to assessing the circumstances in which lawyers should be required to pay costs personally due to improper conduct. In fact, the law in each country on this issue reveals a trend of convergence. Each country examined has shifted in recent years to the use of objective standards that import a standard of negligence in determining if a lawyer should be personally responsible for litigation costs.

This paper is composed of three parts. The first three sections of this paper review developments in the law of each of these three countries in requiring lawyers to pay costs of litigation personally, beginning with the United States and continuing with England and then Canada. The final section of this paper is devoted to exploring some of the insights that may be derived from the pattern of convergence to a negligence standard observed across these three jurisdictions.