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Ethics Committee rulings


Every Issue

Cite as: (2009) 83(04) LIJ, p.79

Ethical dilemmas are part of everyday practice for solicitors. The LIV Ethics Committee is available to help.

Legal practice management

Transfer and conduct of client files

(R4583 October 2008)

A sole practitioner should ensure that all client matters are properly supervised when that practitioner is away from the office for extended periods of time.

A sole practitioner planned to go overseas in November 2008 and to keep practising until his departure, including agreeing to act for new clients whose matters might not be finalised before his departure. While overseas, the practitioner would be available via email and suggested engaging a barrister on a direct access basis to supervise and conduct client files in his absence.

The practitioner sought guidance from the Ethics Committee regarding:

  • whether it is a breach of the Professional Conduct & Practice Rules 2005 (namely rls 1.1 and 2.2) to undertake a matter on behalf of a client, and then after acting for one week advise the client that a barrister will be wholly conducting the client’s matter on a direct access basis;
  • whether there is a minimum amount of time required before commencing to act and then advising the client that a barrister will complete their matter on a direct access basis; and
  • whether the practice can be supervised by a barrister, including the availability of the barrister to be contacted by the client via telephone or in chambers.

Recommendation

In the opinion of the Ethics Committee and on the information presented:

  • The practitioner is bound by r36.1 Professional Conduct & Practice Rules 2005 which states that “a practitioner must ensure that each part of the practitioner’s legal practice is, at all times, carried on or effectively supervised by a practitioner”.
  • The practitioner must disclose to each client that he will not be able to complete each affected client’s matter and make arrangements for the client to:

– instruct another solicitor; or

– instruct a barrister on a direct-access basis.

  • In either situation, the practitioner must cease to act for the client.
  • In the alternative, the practitioner should engage a locum to manage the practice in his absence.

Family

Conflict of interest

(R4588 November 2008)

A practitioner should raise the issue of a conflict as early as possible.

In de facto property proceedings, the wife’s firm alleged that the husband’s firm was in conflict on the basis that the husband’s firm:

  • previously acted for the wife in the drawing of her will and jointly with the husband in two conveyancing transactions;
  • previously acted for the wife’s immediate family members in the drawing of their wills and conducting the conveyances of their properties; and
  • was considered the “family’s firm” for over a decade.
  • The husband’s firm denied a conflict of interest as:
  • the conduct of the wife’s matters occurred some time ago (the will was prepared in 1990, the conveyances in 1986 and 1995);
  • the solicitors who conducted these matters were no longer employed by the firm;
  • the wills and conveyancing files have been destroyed; and
  • the wife’s important documentation such as her will had been stored securely and collected by her.

The husband’s firm stated that the wife did not raise the issue of a conflict until 21 months after the husband retained the firm. The husband’s firm alleged that the conflict allegation was a delaying tactic to prejudice the husband, particularly as the conflict was raised two months before the listed date of the trial.

Recommendation

In the opinion of the Ethics Committee and on the information presented:

  • There is only a remote “theoretical risk” of misuse of confidential information (by way of oral history).
  • The remote “theoretical risk” of misuse of confidential information is outweighed by the detriment caused by the delay in raising the conflict by the wife.
  • The detriment to the husband, caused by the wife’s delay, should not prevent the husband’s firm from continuing to act for the husband.
  • To deprive the husband of his practitioner of choice at this late stage would also cause substantial inconvenience to the court.

Request procedure

The Ethics Committee has established a new process to formalise the way practitioners can request guidance.

The “Request for an Ethics Committee Ruling” form has been developed to improve the Ethics Committee’s service to the profession.

The request form is an updateable Word document and can be saved electronically. An information sheet is also available which provides guidance on filling out the request form.

If you require assistance with an ethical dilemma please read the information sheet and complete a Request for an Ethics Committee Ruling form, available from http://www.liv.asn.au/ethics.


The ETHICS COMMITTEE is drawn from experienced past and present LIV Council members, who serve in an honorary capacity. Ethics Committee rulings are non-binding, however, as the considered view of a respected group of experienced practitioners, the rulings carry substantial weight. It is considered prudent to follow them.

The LIV Ethics website, http://www.liv.asn.au/regulation/ethics, is regularly updated and, among other services, offers a searchable database of the rulings, a “common ethical dilemmas” section and information about the Ethics Committee and Ethics Liaison Group.

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