Legal Advice on Prospects of Success

Author: Ian Aldridge, Progressive Legal

Your prospects of success is an assumption made regarding your chances of successfully pursuing or defending a dispute that threatens to become litigation or Legal Proceedings that have been filed with either a Court or Tribunal, should you decide to pursue prosecution or defending.

Advising in relation to the prospects of success of a dispute is a crucial skill of a good litigation lawyer and will be based on legal and factual analysis of the particular circumstances of the case, taking into account similar cases that have occurred in the past, current law in force at the relevant time and a multitude of other legal inputs.

What’s the current law?

The Legal Profession Uniform Law Application Act 2014 (NSW) schedule 2 states that a law practice must not provide legal services on a claim or defence of a claim for damages unless a legal practitioner associate responsible for the provision of the services concerned reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success. This requires more than just having an arguable case.

What advice may be given?

Assessing prospects of success is one of the most critical parts of forming a resolution strategy. At the time of providing the advice your lawyer must have a proper basis for reasonably believing the stated prospects of success, based on all of the material available.

However, it is important to note that Judges and Magistrates are human and there is not necessarily one ‘right answer’. Therefore, even if you have a good case, success can never be guaranteed or predicted.

Even so, it is a requirement for your lawyer to attempt to give you a prediction as to the prospects of success, so that you can make an informed decision about whether to proceed and if so, to better create a resolution strategy.

What if my lawyer gives me the wrong prospects of success?

In rare circumstances where a law practice provides legal services to a client without reasonable prospects of success, this may amount to unsatisfactory professional conduct or professional misconduct.

This may result in the legal practice having to repay the client all or part of the costs that the client was ordered to pay to another party.

In this situation, the onus is on the legal practice to show that there was an actual basis for providing reasonable prospects of success.

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