Ethics Ruling Number
R5005
Area of Law
Family
Category
Conflict of Interest
Ethics Ruling Date
16/09/2021
Ethics Pub Date
1/02/2021
Ethics Background
There is a potential former client conflict of interest where a law firm acts for a client in circumstances where they have previously acted for a former client in the same proceedings in relation to an earlier Subpoena application. A law firm in this circumstance should cease to act for the client on the basis that there is a clash of ethics duties, in that the former client could be called to give evidence contrary to the interests of the current client. A law firm acted for a mother in Federal Circuit Court of Australia family law proceedings and in separate Children’s Court of Victoria proceedings. The law firm previously acted for an organisation in the family law proceedings and objected to a subpoena served upon the organisation by the father of the child. It was noted that the subpoena was withdrawn by consent but may be re-issued. The law firm later accepted instructions to act for the mother in the family law proceedings. The father asserted that the law firm was conflicted in acting for the mother. The Independent Children’s Lawyer acting for the child was of the same view.
Ruling
In the opinion of the Ethics Committee and on the information presented: 1. There is presently no relevant confidential information of the organisation which has been identified that could give rise to a conflict of interest. 2. Should a conflict of interest subsequently arise based on a duty of loyalty owed by the law firm to the organisation as a previous client, then the law firm may need to cease to act at that point, unless the fully informed consent of the organisation is provided. 3. The law firm should advise their client of the potential for them to be required to cease to act if a conflict of interest based on a duty of loyalty arises subsequently.

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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