Ethics Ruling Number
R4994
Area of Law
Litigation
Category
Solicitor as witness
Ethics Ruling Date
22/04/2021
Ethics Pub Date
1/06/2021
Ethics Background
Rule 27.2 of the Australian Solicitors’ Conduct Rules 2015 provides that in circumstances where a solicitor is required to give evidence in a client’s case, that the solicitor or their firm may act unless doing so would be prejudicial to the administration of justice. Despite the wording of the rule 27.2, regard must be had to the common law which outlines that a solicitor or their firm may act only where there are “exceptional circumstances”. In the absence of “exceptional circumstances”, neither a solicitor nor their firm may continue to act where a solicitor is required to give evidence material to the determination of a contested issue before the court. A firm acted for an executor in a contested will case in the Supreme Court where testamentary capacity, alleged suspicious circumstances and alleged undue influence were key issues for judicial determination. The principal of the law firm was to give evidence material to the determination of those contested issues before the court. The matter was being conducted by a senior associate of the firm. Counsel had raised the ethical issue of whether the firm could continue to act in the matter. There did not appear to be any “exceptional circumstances” applicable in the case that might permit the firm to continue to represent the executor.
Ruling
In the opinion of the Ethics Committee and on the information presented: 1. As there do not appear to be “exceptional circumstances” as required by the courts’ decisions in relation to the interpretation of ASCR 27.2, the firm should cease acting in the Supreme Court proceedings forthwith because the principal of the firm will be required to give evidence material to the determination of contested issues before the court.

Law Institute of Victoria
Ethics Committee of Law Institute of Victoria Ltd
Legal Ethics Manager
Phone: 03 9607 9336
Email: ethics@liv.asn.au

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