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Ethics committee rulings: Authority in question

Every Issue

Cite as: March 2015 89 (3) LIJ, p.75

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

Elder law

Release of documents

(R4838 – April 2014)

Should you release documents where you have concerns about the validity of an authority signed by your former client for the release of those documents?

Firm A was the former law firm of a husband, aged 80 years. Firm B was later retained by him and provided Firm A with an authority signed by the husband to release his will, powers of attorney and title.

Firm A considered that Firm B had not carried out sufficient due diligence and believed that the authority was made by the husband under duress from his wife of 13 years, from whom he had been, and might still be, estranged.

Firm A wanted to know if they should rely on an authority where they believed that it was made under duress and that there had been insufficient due diligence in ascertaining capacity.

Ruling

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

  1. Firm A should provide the client’s new solicitors, Firm B, with the will, power of attorney, title and other documents they have requested. They should do so under cover of a letter stating their concerns and should retain full diary notes to assist if there are later court proceedings.

Legal practice management

Release of donor’s files to the attorney

(R4839 – April 2014)

The donor of an enduring power of attorney (financial) remains the lawyer’s client even after the attorney commences to act under it. The attorney does not replace the donor as the lawyer’s client.

A law firm acted for an elderly woman in various matters. Over time, the client conveyed very sensitive and confidential information about her fractured family to her lawyers. She subsequently lost capacity. One of her sons held an enduring power of attorney (financial) and demanded that the lawyers release his mother’s “titles, documents, papers and files”. Initially this included her will, but the request for the will was withdrawn. The certificate of title to her house was released to the attorney’s solicitors to ensure that it was not sold without his knowledge. However, the demand by the attorney to release all of the other papers and files relating to his mother, including the will file, appeared to be beyond power. The lawyers were of the opinion that their elderly client would never authorise them to directly release any information to any members of her family, given the sensitivity of the family relationships. The attorney appeared to consider that his role as representative of his mother permitted him to stand entirely in the shoes of the mother and that he was entitled to instruct the lawyers to do anything that his mother might have instructed.

Ruling

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

  1. The lawyers’ fiduciary duty is to their former client, the donor. An attorney may represent the donor client but the attorney does not replace the donor client in the client’s relationship with the lawyer.
  2. The lawyers retain residual duties to ensure the protection of its former client’s confidential information.
  3. The lawyers are entitled to refuse to release the papers, documents and files it holds on behalf of the donor as requested by her attorney. (This includes the will and the will file.) l

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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