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Ethics Committee rulings

Every Issue

Cite as: (2008) 82(7) LIJ, p. 85

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

Wills & estates
Conflict; confidentiality
(R4466 August 2007)
When authorised by the client, a practitioner may disclose that client’s confidential information. It is prudent to obtain such authorisation in writing.

The solicitor acted for the executor of a deceased estate in proceedings brought under Part IV of the Administration and Probate Act 1958 by a beneficiary who claimed inadequate provision under the will. The claimant’s sister also intended to commence proceedings under Part IV and her solicitor requested copies of the affidavits in the extant proceedings.

The executor’s solicitor noted the likelihood that the proceedings would be consolidated and also that the executor had no objection to providing the affidavits, but queried whether he was able to provide copies of the affidavits to a solicitor whose client was not presently a party to the litigation.

The solicitor who had prepared the will also requested copies of the affidavits in the event of litigation relating to the preparation of the will. Again, the executor had no objection to providing copies to the solicitor.

A ruling was sought as to whether the executor’s solicitor could provide the affidavit material as requested.

Ruling

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

1. Solicitor-client confidentiality can only be waived in accordance with the provisions of r3, Professional Conduct & Practice Rules 2005.

2. Where the client authorises the disclosure of confidential information, the practitioner may act in accordance with that instruction.

3. The Ethics Committee recommends prior written consent to both disclosures be obtained from the executor.

Legal practice management
Conflict of interest
(R4531 March 2008)
Subject to any overriding legal obligations, a client should be informed of the status of their matter and a practitioner should receive the client’s instructions before acting.

Instructions were provided to a firm by a real estate agent acting on behalf of a company in the preparation of a farm lease.

A title search of the property to be leased was not undertaken and the firm was unaware of an order registered on title under the Proceeds of Crime Act 2002 (Cth) over the property. The order was discovered when contact was made with the mortgagee for consent to the lease.

The firm sought consent from the Commonwealth DPP to the lease, but it was not obtained as anticipated. Subsequently, a production order under the Proceeds of Crime Act was served on the firm and parts of the file were removed by the Australian Federal Police (AFP).

A search warrant of the premises was served on the firm and the file was removed from the premises without instructions being sought from the client as to whether or not legal professional privilege should be claimed.

The AFP, unable to decipher the individual solicitor’s handwritten notes, sought assistance in their translation and requested a witness statement from the solicitor.

A ruling was sought as to what assistance, if any, should be provided to the AFP and whether the client should be informed of the assistance being provided.

Ruling

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

1. The firm should not provide assistance in the absence of the client’s instructions, or the Australian Federal Police establishing a legal obligation to assist.

2. The client should be advised of the status of this matter, subject to any legal obligations not to do so.

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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