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Ethics Committee rulings

Every Issue

Cite as: (2003) 77(10) LIJ, p.94

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

Conflict of interest (1)

The Ethics Committee was asked to consider a conflict of interest situation, where a firm acted in two separate family law proceedings on behalf of the husbands of two couples.

The conflict was alleged to arise when the husband of one couple subsequently formed a relationship with the wife of the other. The wife in the relationship objected to the firm continuing to act for her former husband. She alleged that her former husband had refused to pay spousal maintenance on the basis of his belief that she was living in a de facto relationship, which she denied.

She alleged that the firm was in a unique position of having intimate financial knowledge of her new partner and could affect her claims in relation to property and spousal maintenance.

The firm, however, indicated that it did not see a difficulty with continuing to act and sought advice from senior counsel who confirmed this view.

The firm also indicated it would seek a ruling from the Ethics Committee.

Shortly after, the wife also lodged an objection to the counsel who was appearing for her former husband. She did so on the basis that the counsel had previously appeared for her new partner, and that her new partner had filed an affidavit on her behalf supporting their position that they were not living together. She was concerned that the counsel would have difficulties in cross-examining or otherwise attacking the former husband’s evidence.

The matter was referred to the Ethics Committee.

Resolution
On the material provided, the firm is under a duty of loyalty to the former husband by virtue of the former and until recently ongoing solicitor/client relationship.

The information provided by the parties establishes that the two family proceedings involve closely related issues and the use of confidential information which could lead to a breach of duty on the part of the legal practitioner.

The firm should ceased to act for both husbands in each proceeding.

Release of title

The Ethics Committee’s guidance was sought regarding whether a law firm could release documents signed in the joint names of husband and wife, to the husband only.

The husband had attended the law firm and instructed it to prepare Family Court property consent orders on the basis that his wife had agreed to the terms of settlement.

In preparation of the documents, the husband obtained from the Commonwealth Bank the original certificate of title and discharge of mortgage and the original mortgage which was in the joint names of husband and wife.

The documents were prepared and the husband advised that he would present them to his wife with a cover letter. However, his wife did not sign the documents for some months, so the firm wrote to the husband seeking instructions. The husband paid the account and attended the firm to collect the documents.

The firm, however, advised that it required an authority signed by his wife before releasing the documents.

The firm queried whether it could release the documents to the husband on the basis that he was the firm’s client and had provided the documents to the firm.

Resolution
That the firm advise the wife that pursuant to their client’s instructions, the title will be released to their client at the expiration of 14 days from the date of the letter.

Conflict of interest (2)

The Ethics Committee guidance was sought regarding a possible conflict of interest arising out of a guardianship application.

A solicitor acted for one of two siblings in relation to a guardianship matter relating to their father.

The siblings had lodged opposing claims. The sister sought the appointment of an administrator to manage her father’s affairs. The brother opposed the application and sought that he be appointed administrator.

The solicitor acting for the brother also acted for the father who had the early stages of dementia and was the subject of the proceedings.

The legal firm acting for the sister objected to the solicitor acting for the brother and father on the basis of an alleged conflict of interest. The Public Advocate’s Office supported the objection.

The solicitor resisted the claim on the basis that he had not received any confidential information, and that the father was not a party to the proceedings. Neither the father nor the brother raised objections to the solicitor continuing to act.

Resolution
On the information provided, there would appear to be good grounds for believing that there is a conflict of interest and that the solicitor should cease to act. However, further information is required to resolve the issue, namely a submission from the Public Advocate’s Office.


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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