Ethics Ruling Number
R5011
Area of Law
Wills and estates
Category
Conflict of Interest
Ethics Ruling Date
24/03/2022
Ethics Pub Date
2/05/2022
Ethics Background
In accordance with ASCR Rule 27, in a case which it is known, or becomes apparent, that a solicitor of a law firm will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the law firm’s client in the hearing. Further, in a case in which it is known, or becomes apparent, that a law firm’s solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or the law firm of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice. A law firm acted for the Defendant (Defendant’s law firm) in a Supreme Court proceeding regarding the will-making capacity of a testator. The Defendant was the sole surviving natural child of the deceased, and the executor and sole beneficiary of the deceased’s last will. Another law firm acted for the Plaintiff (Plaintiff’s law firm) who was one of the beneficiaries of the penultimate will. The Plaintiff alleged that the deceased lacked capacity to make the will and that the deceased did not know of or approve of the last Will. The Defendant’s law firm sought a ruling of the LIV Ethics Committee as to whether it could continue to act for the Defendant, where a solicitor of the firm was going to be a material witness as to the testator’s testamentary capacity.
Ruling
In the opinion of the Ethics Committee and on the information presented: 1. The Defendant’s law firm should cease acting in the Supreme Court proceedings forthwith because it has become apparent that a solicitor in the firm will be required to give evidence material to the determination of contested issues before the court as a material witness.

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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