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Ethics Committee rulings

Every Issue

Cite as: (2004) 78(1-2) LIJ, p. 83

Ethical dilemmas are part of everyday practice for solicitors. The Ethics Committee of Victorian Lawyers RPA Ltd is available to help.

Conflict of interest

Professional mobility and acting against former client
A practitioner acted for a defendant and then changed employment to the firm acting for the plaintiff. Both firms agreed that the practitioner was to have no further involvement in the matter although the defendant claimed it would have no objection. The practitioner then commenced working on the plaintiff’s file, although it was apparently some months before the defendant became aware of this.

Four months before trial the defendant objected to the practitioner’s involvement on behalf of the plaintiff, alleging a conflict of interest.

Resolution
The second firm has a clear conflict of interest and must cease acting for the plaintiff. Knowledge of a former client’s behaviour and character can amount to confidential information for the purposes of establishing a conflict. The onus rests on a practitioner to avoid conflicts, despite the defendant’s unfortunate initial lack of objection in this case.


Conflict of interest

Prior conveyance
Acting in an earlier conveyance for one party may not prevent a firm from subsequently acting against that party.

During 2000, a client of more than 10 years instructed the firm to act in a purchase of property by her then de facto husband. The de facto husband never met with anyone at the firm other than coming to the office to sign the transfer of land.

The parties separated. The de facto husband alleged a conflict of interest in the firm acting for the client in respect of the property settlement, on the basis of the firm’s involvement in the earlier purchase.

Resolution
On the basis of the information provided, the Ethics Committee finds there is no apparent conflict of interest. Given the circumstances of the earlier conveyance, there is no reasonable perception that the firm received confidential information from the de facto husband which could be used to his detriment in the current proceedings.


Mental capacity of client

Duty of legal practitioner
A solicitor is not a mental health expert and may need expert assistance on capacity issues.

A firm acted for a client in a TAC claim and held some impairment benefit payments in trust. The client instructed the firm to return the funds to the TAC. However, the client had residual organic brain damage and a significant psychological reaction to his injuries and the firm doubted his competency to instruct. The treating psychologist believed the client might be a candidate for compulsory in-patient treatment. The client expressly stated he did not want a guardian appointed. The firm sought a ruling in relation to the disposition of the funds in trust and whether it could and should make an application to have an administrator or guardian appointed.

Resolution
The firm should not dispose of or return the trust funds at this stage.

With the consent of the client, the firm should engage a psychiatrist to arrange an assessment of the client’s injuries and mental capacity. The firm should act on that advice, unless of course the psychiatrist takes steps of his own motion.

If the client refuses to attend a psychiatrist, the firm should advise the client that it can no longer act for the client, giving reasons, and should contact a trust account inspector of the Law Institute of Victoria for further direction.


Conflict of interest

Preparation of another party’s affidavit
A firm prepared an affidavit on behalf of the first-named respondent while acting for the applicants. A father approached a firm asking it to act for his parents in making a family law residency application in relation to his child. There was no suggestion that the firm gave advice or obtained confidential information from the father, but the firm prepared and witnessed the father’s affidavit in support of his parents’ application. The father became a respondent to the application, as a matter of form. The child’s mother and maternal grandparents were also named as respondents.

The father was separately represented. He had no objection to the firm’s ongoing involvement on behalf of the paternal grandparents and apparently perceived no detriment to his position.

Solicitors for another respondent raised concerns about conflict. Several conduct issues were also raised.

Resolution
On the information provided, there is no conflict of interest and the firm may continue to represent the applicants. The Committee notes that the settling and witnessing of the first respondent’s affidavit by the firm was inappropriate in the circumstances. However, given the lack of objection to their continued involvement by the first respondent’s separate legal representative and the lack of any exchange of confidential information or giving of legal advice, a conflict of interest does not appear to have arisen.

Separate concerns by one party’s representative about the alleged negligence of another party’s representative are beyond the scope of the Ethics Committee. The concerned practitioner should be referred to the appropriate complaints process.


Correction

In the October 2003 LIJ (page 94) “Conflict of Interest (2)” reported an Ethics Committee ruling on a possible conflict of interest arising out of a guardianship application. The background material contained minor factual errors. These had no bearing on the Committee’s decision. The Committee is grateful to the Office of the Public Advocate for bringing the errors to its attention.


The Ethics Committee is drawn from experienced past and present members of the Council of Victorian Lawyers RPA Ltd with involvement in a wide range of practice areas. Committee members serve in an honorary capacity and meet monthly to consider requests by solicitors for rulings on ethical issues in legal practice. For further information, contact the Legal Ethics Manager on tel 9607 9383.

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