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Ethics Committee rulings

Every Issue

Cite as: (2008) 82(9) LIJ, p. 75

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

Legal practice management – release of electronic documents/data

(R4543 May 2008)

Whether a firm is obliged to give documents in electronic form to the new firm retained to act.

A practitioner drafted documents in an electronic format for a client. During that client’s retainer, the practitioner moved to another firm and he took his client with him. The practitioner obtained his client’s file, which included a “hard” copy of the draft documents.

The practitioner sought the electronic version of the draft documents from his former firm. This request was refused.

An Ethics Committee Ruling was sought as to whether the practitioner’s client was entitled to the electronic version of the draft documents.

Recommendation

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

1. As the determination of this issue is partly a legal issue, the Ethics Committee cannot give a ruling.

2. To assist the parties, the Ethics Committee notes:

i. rule 7, Professional Conduct & Practice Rules 2005 is the relevant applicable rule;

ii. drafts of documents can be the property of the client;

iii. electronic documents may be documents under s38 of the Interpretation of Legislation Act 1984 (Vic);

iv. in determining whether a client is entitled to the electronic version of any document created by a law practice, one must have regard to all the circumstances of the case; and

v. in this case there is a lack of evidence to support the client’s claim to be entitled to the electronic version of a draft document.

Family – conflict of interest; successive

(R4550 May 2008)

Difficulties may arise where a firm acts for an ex-husband and also for the new husband of the ex-wife where the matters may have a bearing on each other.

Negotiations were underway to vary the ex-husband’s contact arrangements with his child. Financial issues were previously finalised.

The ex-wife’s new husband instructed another partner of the ex-husband’s firm regarding the sale of his business. The ex-husband was aware of the sale, but unaware that the same firm was instructed.

A further complication existed where the ex-husband’s new partner was an employee of the firm and could become aware of the details regarding the sale of the business.

An Ethics Committee Ruling was requested by the firm to determine whether a conflict of interest existed, given that the sale of the business was not related to the child custody matter.

Recommendation

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

1. There appears to be no current conflict of interest in the firm continuing to act for either party.

2. Changes to contact arrangements can trigger an examination of child support, in which case the financial affairs of
the parties and their partners may be relevant.

3. There appears to be at least a theoretical risk of a conflict of interest.

4. It is prudent for the firm to cease acting for either client.

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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