Class Action

Where it becomes apparent that a lawyer will be required to provide evidence in a matter in which they act, the lawyer and the firm may be conflicted and required to cease acting.

A specialist class action law firm was undertaking preliminary investigations assessing claims regarding the use of excessive force by police against protestors at a protest. Two lawyers employed by the firm attended the protest in differing personal capacities, and there was a possibility they might become material witnesses in the event proceedings were instituted. The firm sought a ruling as to the ethical constraints that might result from the involvement of the two lawyers in the protest, and additional steps that could be undertaken to mitigate the ethical consequences for the firm.

In the opinion of the Ethics Committee and on the information presented:

1. It is not known or apparent at this stage that Lawyer A or Lawyer B will be called as witnesses. Accordingly, the firm may continue to act, subject to paragraph 2 below.
2. The firm should advise their client (once known) that if it becomes apparent at any stage that Lawyer A or Lawyer B will be required to give evidence then the firm may be conflicted and required to cease to act.