Where a firm acts against a former client in the same or a related matter, the firm will be conflicted and required to cease acting. The conflict stems from the possible misuse of confidential information of the former client, a breach of the duty of loyalty, and the appearance of justice that a firm should not act against the interests of a former client.

A firm acted for an elderly lady over several years in relation to estate planning, probate, wills and a power of attorney. Her daughter made an application to the Guardianship List at VCAT regarding her mother’s affairs based upon concerns she had about the management of those affairs by the attorney under power. The attorney was one of the lady’s sons and he and two of his brothers were named as relatives and interested parties in the VCAT application. The firm accepted instructions to act for the three brothers in the VCAT application. The daughter has asserted that the firm has a conflict of interest and should cease acting for the three brothers in the VCAT Matter.

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

1. The firm are conflicted in acting for the three brothers in the VCAT application and should cease acting immediately.
2. The conflict is based on a breach of the duty of loyalty owed by the firm to the client, the appearance of justice in that a solicitor should not be seen to be acting against the interests of a former client in a same or related matter, and the possible misuse of confidential information which the firm gained over a period of years in acting as solicitors for the client (before appointment of the attorney.)