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Ethics committee rulings: Interviewing witnesses

Every Issue

Cite as: Jan/Feb 2015 89 (1/2) LIJ, p.74

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

Litigation

Communicating with potential client of another firm

(R4833 – July 2014)

When is it appropriate for a legal practitioner to interview a potential defendant in a motor vehicle accident matter where an insurer is likely to be involved at some later date?

The law firm acted from time to time for plaintiffs in common law proceedings arising from motor vehicle accidents. The law firm asked whether it was ethically appropriate for the plaintiff’s lawyers or their agents to hold discussions with a witness who was a potential defendant in common law proceedings arising from such an accident.

The relevant insurer was not a law firm and took the view that the law firm’s request for an Ethics Committee Ruling was an inappropriate use of the Ethics Committee’s processes. Nevertheless, the insurer made observations germane to the one issue on which it felt it might be appropriate for the Committee to provide guidance, namely the obligations on solicitors when communicating with persons entitled to be indemnified by the insurer, including potential defendants in a suit or cross-claim potentially to be brought by the solicitor’s client.

Ruling

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

There is nothing under the current Rule 25 of the Professional Conduct and Practice Rules 2005 to prevent a plaintiff lawyer interviewing a prospective insurer’s defendant until such time as the defendant is represented.

The prospective Rule 22.4 of the Australian Solicitors’ Conduct Rules 2011 does not prevent a plaintiff lawyer interviewing a prospective insurer’s defendant until such time as the defendant is represented or the prospective insurer has indemnified that person. The Ethics Committee understands that there is no obligation on the part of the prospective insurer to indemnify the driver of a vehicle involved in an accident until the relevant plaintiff has become entitled to recover damages.

In any event a plaintiff’s lawyer should comply with the Guidelines on Interviewing Witnesses published by the LIV in October 1990.

Family; bankruptcy

Conflict of interest

(R4841 - April 2014)

Can a law firm act for a trustee in bankruptcy in family law property proceedings in which the bankrupt is a party and in which the trustee has been joined as a party when the law firm acted previously for the bankrupt in those proceedings?

A law firm was acting for a client as applicant in de facto family law property proceedings in the Family Court of Australia. The trial of the matter was part heard in June 2013 and was due to resume in August 2014. In September 2013 the client was declared bankrupt and thereafter the firm filed a Notice of Ceasing to Act for the client. The trustee in bankruptcy was joined as a party to the proceedings. The trustee in bankruptcy asked the firm to act for him in the remainder of the proceedings as the trustee believed that such a course would be in the best interests of the creditors. The client consented to such a course. The firm was prepared to act as requested provided that the Ethics Committee was of the view that no conflict of interest would arise that could not be addressed by the giving of informed consent.

Ruling

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

  1. There is a risk of a conflict of interest arising if the law firm acts for the trustee in bankruptcy in the remainder of the client’s property settlement proceedings in the Family Court of Australia. Informed consent will enable that course to be undertaken as the interests of the client and the trustee in bankruptcy in the litigation appear to be aligned at this point in time.
  2. In order to be satisfied that informed consent has been given, the client should obtain independent legal advice and it may be prudent for the trustee in bankruptcy to also obtain independent legal advice before the law firm commences to act.

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, www.liv.asn.au/For-Lawyers/Ethics.aspx, 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. For further information, contact the ethics solicitor on 9607 9336.

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