Ethics Ruling Number
R5015
Area of Law
Guardianship
Category
Conflict of Interest
Ethics Ruling Date
10/20/2022
Ethics Pub Date
11/28/2025
Ethics Background
A Law Practice act for A, who is the child of, and one of the attorneys/agents appointed under, Powers of Attorney prepared by the Law Practice 5 years earlier for their former client. The former client is now incapacitated. The former client’s other child, B, had previously been appointed one of the attorneys/agents under Powers of Attorney prepared 7 years prior to the later Powers of Attorney by the former client’s then solicitor. B alleges that the former client may have lacked capacity at the time the later Powers of Attorney were made and that A has misused the former client’s money. The Ethics Committee has been asked to provide a ruling on whether the Law Practice is conflicted because of a former client conflict of interest and on the basis that a solicitor from that firm may be required to give evidence as to their former client’s capacity.
Ruling
In the opinion of the Ethics Committee and on the information presented: 1. The Ethics Committee is unable to determine if the Law Practice currently has a conflict, however, if the Law Practice is aware that A has breached their obligations as an attorney then they would have a conflict. 2. If the Law Practice subsequently becomes aware that A has breached her obligations then the Law Practice would have a conflict at that point and would need to cease to act (and the Law Practice should make A aware of that now, so they can make an informed decision about continuing to engage the Law Practice). 3. As there are currently no proceedings on foot, the possibility that someone from the Law Practice may be called to give evidence does not trigger the material witness prohibition against acting in the case. If it becomes known or apparent that the Law Practice will be a material witness, then the Law Practice would need to cease to act if doing so would prejudice the administration of justice (and the Law Practice should make A aware of that now, so they can make an informed decision about continuing to engage the Law Practice).

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

Back to Search