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Ethics Committee rulings

Every Issue

Cite as: (2006) 80(9) LIJ, p. 77


Ethical dilemmas are part of everyday practice for solicitors. The Ethics Committee of the Law Institute of Victoria Ltd is available to help.

Wills and estates – conflict, concurrent

(R4310 February 2006)

The extent of information provided to the executor by the solicitor acting for the estate is not affected by his personal relationship to the beneficiaries.

A firm acted for a deceased estate where the son, daughter and son-in-law had been appointed co-executors under the will.

The will left 95 per cent of the residuary estate to the son. The daughter reserved leave to apply for probate as she intended to challenge the will. The son and son-in-law wished to apply for probate as co-executors. The firm sought a ruling as to what inform-ation could be disclosed to the son-in-law if his wife proceeded with a Part IV claim.

Ruling

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

1. The son-in-law may have a personal conflict in acting as a co-executor. That is a matter for him. The son acting as co-executor will also have a personal interest in the outcome of any Part IV claim.

2. The executor is entitled to all information relating to the estate. The firm should advise its client that his duty as executor is to uphold the will. The circumstances described do not prohibit the son-in-law from acting as executor or give rise to a conflict of interest on the part of the solicitors.

Legal practice management – duty to client

(R4324 May 2006)

Good cause and reasonable notice to the client are the bases on which a retainer may be terminated.

A firm took over a VCAT matter for a client who had previously been represented by two other firms. The client became abusive and refused to accept both the firm’s and counsel’s advice in the conduct of the matter. The firm sought to terminate the retainer with the client.

Ruling

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

1. The firm can terminate the retainer to act for the client on the basis that the firm is unable to obtain clear instructions, and there is a serious breakdown in communication between the firm and the client.

2. The retainer can be terminated on the firm giving reasonable notice to ensure the client is able to make alternative arrangements for representation in the further conduct of the VCAT proceedings.

Bankruptcy/family law – conflict of interest

(R4325 May 2006)

There is no conflict of interest where a firm has not obtained confidential information that could be used to the disadvantage of a former client.

A community legal service acted for Mr B in criminal and civil matters including bankruptcy and a social security appeal. The community legal service also acted for Mrs B in the social security appeal on a joint basis with Mr B as a consequence of their changed financial circumstances following receipt by Mr B of an overseas pension. The community legal service obtained limited financial information from Mrs B in relation to the joint affairs of Mr and Mrs B. Mr and Mrs B then separated. The community legal service sought an Ethics Committee ruling as to whether it could continue to act for Mr B in family law matters.

Ruling

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

1. The community legal service can continue to act for Mr B as it has not obtained confidential information that could be used to the disadvantage of Mrs B.


The Ethics Committee is drawn from experienced past and present members of the Council of the Law Institute of Victoria Limited with involvement in a wide range of practice areas. Members serve in an honorary capacity and meet monthly to consider requests by solicitors for rulings on ethical issues in legal practice.

Ethics Committee rulings are non-binding and do not have the force of law. However, as the considered view of a respected group of experienced practitioners, the rulings carry substantial weight. It is considered prudent to follow them. For further information, contact the Legal Ethics manager on ph 9607 9383 or visit http://www.liv.asn.au/regulation/ethics/rulings

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