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Ethics Committee rulings

Every Issue

Cite as: (2005) 79(7) LIJ, p. 89

Ethical dilemmas are part of everyday practice for solicitors. The Ethics Committee of the Law Institute of Victoria Ltd is available to help.

Litigation: conflict of interest – who is client?

(R4205 February 2005)
There must be confidential information before there can be held to be a conflict of interest.
The Ethics Committee was asked whether a firm had a conflict of interest in acting for an individual against the company. The firm had previously had discussions with officers/ directors of the company but claimed that this was only in its capacity as legal adviser to the individual and/or a shareholder of the company. A file was opened in the name of the individual and an account rendered in his name.

The firm said that it only ever acted for the individual and/or a shareholder of the company.

Ruling
Based on the information in front of the Ethics Committee, the Committee is not satisfied that a conflict of interest exists in relation to the firm continuing to act for the individual in the Magistrates’ Court complaint against the company, since no evidence of relevant confidential information or the existence of a duty of loyalty has been provided to the Committee.

Family: conflict of interest – successive

(R4222 March 2005)
The identity of the client should be carefully ascertained. A conflict may arise where there has been consultation on behalf of one party with a particular practitioner who subsequently joins a firm acting on behalf of the other party.
This matter involved family law custody and access issues.

Firm A acted for the mother and Firm B acted for the father. Both firms claimed the other had a conflict of interest.

Firm B met with the paternal grandmother and the mother jointly and gave the mother minutes of consent orders. She was advised to seek independent legal advice and did so from Firm A.

The paternal grandmother claimed she had sought advice from a practitioner now at Firm A two years earlier in relation to her son’s marriage to the mother. The practitioner had no recollection of the conference and no access to the file.

Ruling
In the above circumstances, the Ethics Committee’s view is that:

  1. On the facts before the Committee, the practitioner of Firm B does not have a conflict of interest in acting for the father against the mother, as no confidential information was received, nor was the mother a client, therefore no duty of loyalty was owed.
  2. In the context of a family law matter there is a reasonable perception that the practitioner of Firm A has a conflict of interest in acting against the father as a result of having previously been consulted regarding the father’s relationship and child contact.

The Ethics Committee is drawn from experienced past and present members of the Council of the Law Institute of Victoria Limited with involvement in a wide range of practice areas. Members serve in an honorary capacity and meet monthly to consider requests by solicitors for rulings on ethical issues in legal practice. Ethics Committee rulings are non-binding and do not have the force of law. However, as the considered view of a respected group of experienced practitioners, the rulings carry substantial weight. It is considered prudent to follow them. For further information, contact the Legal Ethics Manager on ph 9607 9383 or visit http://www.liv.asn.au/regulation/ethics/rulings.

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