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Ethics Committee rulings

Every Issue

Cite as: (2002) 76(10) LIJ, p.79

Ethical dilemmas are part of everyday practice for solicitors. The Ethics Committee of Victorian Lawyers RPA Ltd is available to help.

DUTY TO COURT V BREACHING SOLICITOR/CLIENT CONFIDENCE

Solicitor D of legal firm D acted for the defendant in relation to an allegation of driving a motor vehicle with a blood alcohol content exceeding 0.00 (the defendant had prior convictions of blood alcohol readings of over 0.05).

The summons, police summary and s51 notice described the date of the alleged offence as occurring a year earlier than the actual date of the alleged offence. The recording of the earlier date suggested that the defendant had already served a lengthy period of disqualification as a driver. This was an error made by the prosecution.

Legal firm D was not aware of the error made by the prosecution until after the proceedings had concluded.

Solicitor D sought to obtain permission from the defendant to disclose the error and have the matter re-listed. However, such permission was denied.

Solicitor D sought the Ethics Committee’s guidance as to whether, in the absence of such permission, they could advise the court and prosecution of the error without breaching solicitor/client confidence.

Resolution

On the facts as described, it is doubtful that the legal practitioner has breached any duty to disclose facts to the court. On the facts described, there is no obligation to disclose to the court facts ascertained subsequent to the conclusion of the proceedings.

CONFLICT OF INTEREST

Solicitor A of legal firm A was consulted by client A concerning the dissolution of a partnership with client B, and regarding recovery of money in relation to an overdraft facility.

Solicitor A previously acted for client B in matters unrelated to the partnership, and had also advised clients A and B when a third partner withdrew from the partnership.

Solicitor A sought the Ethics Committee’s guidance as to whether a conflict of interest existed in acting for client A in the dissolution of the partnership with client B.

Resolution

Legal firm A potentially have a conflict of interest in acting for client A in relation to proceedings against client B concerning the partnership. Legal firm A should not act in this matter for client A.

STAKEHOLDER MONIES

Legal firm T acted for the tenants and legal firm L acted for the landlord in a dispute in respect of rent and repairs. Legal firm L commenced proceedings in VCAT.

Negotiations ensued, and in an attempt to resolve their respective disputes the landlord and tenants entered into terms of settlement. The terms of settlement provided, inter alia, that a chattel mortgage and new lease be executed by the parties. It was also provided that, as a contribution to the landlord’s costs in bringing the application, the tenants would pay the landlord $1500. On the tenants’ request, legal firm L agreed to hold the monies in trust pending execution of the new lease and chattel mortgage.

The relationship between the tenants and landlord did not improve, and the documents were not executed by the tenants.

The landlord’s solicitor took the monies held in trust for costs. Legal firm T believed the monies should be forwarded to the tenants.

Resolution

1. Whether the monies are the property of the landlord or the tenants is a legal question and not for determination by the Ethics Committee.

2. The monies should be returned to legal firm L’s trust account and retained there, pending resolution by the parties as to its distribution, or VCAT order.

CONFLICT OF INTEREST

Legal firm V acted for client V in relation to her property. Legal firm B acted for client B. Client B claimed a life interest in client V’s property. Legal firm B lodged a caveat on the property, and issued Supreme Court proceedings for enforcement of client B’s alleged right to a life interest in the property. Prior to the lodging of the caveat and issuing of proceedings, client V sold the property. The caveat, however, prevented settlement of the property.

After the auction of the property, the purchasers independently consulted legal firm B for advice as to whether they could avoid the contract of sale based on the representations by client V’s former husband, Mr X, that he would dismantle or remove certain fixtures on the property. Legal firm B did not act on the purchasers’ behalf in relation to the sale.

The parties sought a ruling from the Ethics Committee as to whether legal firm B had a conflict of interest in continuing to act for client B.

Resolution

That on the material provided to the Committee by the parties, legal firm B do not have a conflict of interest and may continue to act for client B.


NOTES

The Ethics Committee is drawn from experienced present and past members of the COUNCIL OF VICTORIAN LAWYERS RPA LTD. Committee members serve in an honorary capacity, meeting monthly to consider requests for rulings. Those seeking a ruling should write to the Secretary, Ethics Committee, Victorian Lawyers RPA Ltd, 470 Bourke Street, Melbourne 3000.

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