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The Ethics Committee at work

Feature Articles

Cite as: Jan/Feb 2015 89 (1/2) LIJ, p.38

For those practitioners faced with an ethical difficulty, the LIV Ethics Committee is here to help. 

By Richard Fleming

Ethics special issue

Experienced practitioners will often see a potential conflict of interest or other ethical issue coming and take steps to avoid or manage it long before it is a reality. Accordingly, it is possible that a practitioner could avoid directly encountering an ethical problem of their own throughout their entire career, and have little cause to understand the role and nature of the LIV Ethics Committee (EC).

Sometimes, however, an unexpected turn of events can catch out even the most diligent practitioner. Alternatively, a practitioner may be involved in a matter where the opposing practitioner engages in conduct that appears to be unethical and perhaps also contrary to the interests of the client of the innocent practitioner. In such circumstances, the EC is one potential source of assistance to members of the LIV.

The Ethics Committee

The EC is a committee of the Council of the LIV. The EC has existed in various guises for at least 60 years1 and possibly longer. Today, the EC is made up of about 15 present and past LIV Council members, and is assisted by a group of experienced professional staff from within the LIV.

The EC members are all experienced practitioners, with hundreds of years of experience between them, who cover the spectrum of legal practice in terms of:

  • practice types (e.g. arge, small, city, suburban, country, private firm, corporate, legal aid or community practice); and
  • subject matter (e.g. general practice, litigation, commercial, property, family, criminal, wills and estates, and migration).

Although the EC adds new members from time to time, a significant number of its members have sat on the EC for at least 10 years. The EC represents an impressive depth of knowledge and practical insight on ethical questions.

Monthly rulings

The main role of the EC is to meet monthly (except in January) to consider various ethical dilemmas LIV members face, and provide rulings in relation to them.

Usually practitioners first contact the LIV’s Ethics department by phone to discuss the issue. The Ethics department is staffed by professionals who assist the EC, and in many cases the matter is resolved when the practitioner first calls. The experience of the Ethics department in assessing ethical problems will often enable them to provide clear guidance regarding the appropriate course of action for the practitioner.

Some matters, however, cannot be resolved in a phone call or two. They may be too complex, involve novel issues or circumstances, or simply be in a “grey zone” where the appropriate ethical response is not obvious. Alternatively, it may be that a ruling is necessary or desirable, e.g. in order to provide a sufficient level of comfort to the practitioner regarding the course of action to take, or in order to assist in resolving a dispute between two practitioners on a question of ethics.

Matters that are not resolved with the initial phone calls usually proceed to a ruling by the EC, provided that they do not involve issues that are the subject of a current complaint to the Legal Services Commissioner or disciplinary proceedings before the courts or tribunals. Excluding such matters is necessary to reduce the potential for contradictory approaches by the EC, regulators and courts and tribunals.

The EC’s processes to obtain a ruling are relatively informal – the EC requires that practitioners submit a form or letter describing the relevant issue(s) together with any supporting documentation that the practitioner believes is relevant. If the matter involves another practitioner, the EC will usually also ask the other practitioner to provide his or her views on the matter. Although it is preferable that both sides participate, it is worth noting that the EC may proceed to provide a ruling even if there is another practitioner involved who refuses to participate in the process.

The EC cannot decide matters of fact if they are in dispute. Only a court or tribunal can make such determinations.

The EC considers matters on a confidential basis – except, of course, for the disclosure of material submitted by the practitioner to the other practitioner involved (if there is one), and vice versa.

The EC then makes a ruling “on the papers” (submissions in person are not permitted) in the course of its regular meetings.

Rapid rulings

Most ethical issues facing solicitors are not truly urgent. Accordingly, the monthly cycle of EC meetings will be sufficiently responsive in most cases. There are, however, some limited circumstances that are legitimately more urgent – usually court or tribunal matters.

The EC has recently developed a rapid rulings process to address such cases. It is available for either:

  • matters involving an ethical problem that arise only shortly before an impending court or tribunal appearance; and
  • matters where the court or tribunal itself requests that the practitioner obtain an urgent EC ruling.

In such cases the EC will endeavour to provide a ruling overnight. Such rulings will usually be passed by circular email – it being impractical to hold a physical meeting at short notice because EC members are located across Melbourne and Victoria.

The nature of rulings

Although described as “rulings”, the determinations of the EC are really recommendations in that they are non-binding. However, the courts have stated that the rulings carry significant weight as they represent the considered view of a group of practitioners whose collective breadth and depth of experience is significant. For example, in the Supreme Court Byrne J stated:

“Finally, I make mention of the submission of counsel for Coopers & Lybrand, which I found very troubling. He drew my attention to the rulings of the Ethics Committee of the Law Institute where the position of a solicitor witness was discussed. The Committee was, generally speaking, against the concurrence of these two functions. I pay great weight to this as the considered view of practitioners of repute and experience”.2

Indeed, in most years there are instances of a court adjourning proceedings so that the EC can provide its view on a related ethical matter, or of a court recommending that a practitioner seek a ruling from the EC.

For this reason, an EC ruling can provide significant comfort for a practitioner as, although a court could ultimately decide that the ruling of the EC is incorrect, the practitioner can hardly be criticised for following that ruling.

Where a matter involves another practitioner engaging in conduct regarded as unethical, a ruling of the EC against that practitioner can lead to him changing his approach (including ceasing to act in some cases), effectively resolving the problem. Even the most belligerent of opponents will have pause for thought when faced with an EC ruling against them. Certainly an opponent would want to have very clear arguments for ignoring an EC ruling if there is a likelihood that persisting in the conduct ruled as being unethical will be challenged in the courts.

Matters considered

The EC considers matters involving the full gamut of ethical questions and related professional rules. Although the most common scenarios are those involving a conflict of duties to a current client and a previous client, rulings can involve a huge variety of ethical issues, including:

  • acting as a witness in proceedings;
  • releasing files or documents to an ex-client’s new solicitor;
  • terminating the engagement with a client; and
  • problems with undertakings, including those involving money held in trust.

For example, one ruling involved only one practitioner and concerned a situation where an elderly client had, through or in the presence of her daughter, repeatedly provided instructions to change her will to the benefit of the daughter. However, each time the solicitor discussed the matter with the elderly client separately from the daughter, the elderly client said that she did not want to change the will. Ultimately the elderly client did provide uncontroverted instructions to change the will and appeared to have legal capacity.

The solicitor was understandably concerned about the influence of the daughter over the mother. The EC ruled that, if the solicitor was of the view that her client had legal capacity, then the solicitor was obliged to follow the instructions of her client. The ruling would have provided significant comfort to the practitioner.

Resources

The EC also provides a significant range of resources for self-help. In particular:

  • a selection of recent rulings (together with their factual backgrounds) is anonymised, summarised, and published monthly in the LIJ;
  • the LIV website includes a useful database of anonymised summaries of more than 500 rulings that can easily be searched to identify potential rulings of relevance to the issue facing a practitioner; and
  • the EC also prepares and maintains a variety of guidelines on common ethical issues that are formally published by LIV Council. Again, these can be found on the LIV website.

Conclusion

If you are an LIV member and have an ethical issue, you should not hesitate to seek the assistance of the EC. Initially that might be via the self-help materials on the LIV website. Alternatively you could contact the Ethics department for an initial view. The easiest place to start is the LIV website – just type “ethics” in the search box, and you will soon find yourself on the right track.


RICHARD FLEMING is the principal at Benelex where he practises commercial and technology law. He has been a member of the LIV Ethics Committee since 2002 and its chair since 2005. Richard was also a member of the Legal Services Board from 2010 to 2014.

  1. For example, the LIV’s 1953 Annual Report of Council refers to a six member “Complaints and Etiquette Sub-Committee”.
  2. Executive Homes v First Haven [1999] VSC 26 (13 July 1999) at [14].

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