Ethics Ruling Number
R4996
Area of Law
Litigation
Category
Conflict of Interest
Ethics Ruling Date
22/07/2021
Ethics Pub Date
1/10/2021
Ethics Background
Solicitors may be conflicted in circumstances where they provide legal services in relation to a matter in which they have previously acted and obtained confidential relevant information from a former client that may be used to the detriment of the former client. The conflict will arise regardless of whether the solicitors purport to be merely conveying information to the client in their capacity as agent. A solicitor (‘the solicitor’) had acted for a client for many years. The client married, and the client’s spouse engaged the solicitor to act in a number of matters which included the making of wills and creation of testamentary trusts. The spouse died (‘the deceased’), and the client was appointed executor of the estate. The client retained the solicitor to act on the estate’s behalf, but subsequently renounced executorship in favour of the deceased’s son. The son engaged a law firm (‘Firm X’) to act for the estate and legal proceedings were instituted. In the proceedings, the client was represented by another law firm (‘Firm Y’). Much of the communication between Firm Y and the client was conveyed through the solicitor. Firm X asserted that the solicitor was acting for the client as a solicitor and had to cease acting on the basis of a conflict of interest, and that the solicitor would likely be a material witness in the proceedings. The solicitor considered that he was acting only as an agent on the client’s behalf and not as a solicitor.
Ruling
In the opinion of the Ethics Committee and on the information presented: 1. The solicitor should cease acting in any capacity that involves providing legal services, for reasons including – (a) The solicitor obtained confidential information when acting for the deceased and others connected to the proceedings. (b) The solicitor is likely to be a material witness in the proceedings. The Committee noted the decision of Lee & Anor v MK Trading Co Aust Pty Ltd & Anor [2021] VSC 343.

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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