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Ethics committee rulings

Every Issue

Cite as: (2009) 83(03) LIJ, p.76

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

Compensation

Conflict of interest; concurrent

(R4573 September 2008)

Where a conflict of interest arises between multiple plaintiffs, a firm must cease to act for all conflicted clients.

A firm acted for multiple plaintiffs in a group action where plaintiff A made serious accusations against plaintiff B. The accusations implicated plaintiff B in the matter that was the subject of the litigation.

As a result of the accusations the firm ceased to act for plaintiff A. However, the firm was pressured to continue acting for plaintiff B on the basis that it would be very difficult for plaintiff B to find new representation.

The firm requested the Ethics Committee’s advice as to whether it could continue to act for plaintiff B.

Recommendation

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

1. The Ethics Committee is of the view that it is likely that a conflict exists now and may become relevant in the future and it is prudent for the firm to cease acting for A and B.

2. A possible lack of other representation does not allow for a firm to act in a conflicted situation.

Wills & estates

Duties to client

(R4580 October 2008)

Where a firm believes that a client has legal capacity to provide instructions, a firm has an obligation to follow those instructions.

A firm was concerned as to whether it was obliged to draft a new will for its elderly client where it believed that the client had capacity but was under undue influence or duress from the client’s daughter.

The current will (prepared in 1995) provided that the client’s son and daughter were to receive equal shares of the estate. The client confirmed satisfaction with this will in 2003. The elderly client lived with the daughter and the daughter’s husband and had little contact with the son.

On several occasions throughout 2008, in the presence of the daughter, the elderly client instructed the firm to alter the will to remove the son as a beneficiary. Whenever the daughter was not present, the client would instruct that she did not wish to change her will.

Recommendation

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

1. If the client has legal capacity, the firm has a duty to follow the lawful and competent instructions of the client.

2. The firm has an obligation to provide information and advice for the advancement or conclusion of the client’s matter, including copies of any correspondence received.

3. The firm has a duty of confidentiality to the client which extends past her death. The practitioner should not disclose her concerns to a third party unless by instruction from the client or when required by law.

4. The firm should be mindful of a potential conflict of interest if the new will is contested. Independent legal advice should be sought if this arises.

Personal injury/medical

Conflict of interest

(R4585 October 2008)

A conflict of interest may arise where a firm may be critical of a former client.

Since 2003, a firm has been acting for a plaintiff child in a claim for nervous shock against a defendant health service. The parents and other siblings of the child were subsequently joined as co-plaintiffs in late 2003 for their own nervous shock claims.

At all times the parents were the child’s agents, providing information to advance the claim. The mother was appointed the child’s litigation guardian in late 2003, however, an independent guardian was appointed when it was advised that it was unlikely that the parents’ claim for nervous shock would succeed and they were advised to obtain independent representation. The siblings were also removed as co-plaintiffs.

In 2008 the firm received and reviewed subpoenaed documents from the Department of Human Services and other welfare agencies and as such came to the conclusion that the statement of claim would be amended to be critical of the parents regarding the circumstances surrounding the nervous shock.

The firm asked whether it could continue to act for the child even where the parents would not be joined as defendants in the proceedings.

Recommendation

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

The firm is likely to have a conflict of interest and should cease 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, 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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