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Ethics Committee Rulings: Representing children

Every Issue

Cite as: September 2015 89 (9) LIJ, p.71

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

Children
R4859: December 2014 — S524 Children, Youth and Families Act 2005 – Representation of the child Since 26 March 2013 in the Family Division of the Children’s Court a solicitor acting for a child under the age of 10 years on a “best interests” basis may continue to act for the child after the age of 10 years in the same or a separate proceeding on a “direct instructions” basis provided that certain steps are followed by the solicitor.

The Children, Youth and Families Act 2005 was amended so that since 26 March 2013 legal representation of children under the age of 10 in the Family Division of the Children’s Court is to be on a “best interests” basis.

The Ethics Committee was asked for guidance on whether it is ethical for a solicitor, who has previously acted on a “best interests” basis for a child under the age of 10, to act for the same child on a “direct instructions” basis once the child reaches 10 years. The Committee was also asked for guidance on whether it makes any difference whether the change from “best interests” to “direct instructions” occurs in the same proceeding or a separate (subsequent) proceeding.

Ruling

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

A solicitor, having previously acted for a child under the age of 10 years on a “best interests” basis, may act in the same proceeding or a subsequent proceeding for the same child on a “direct instructions” basis on the child attaining the age of 10 years provided:

the solicitor explains to the child the nature of the change in his/her role;

the solicitor explains to the child that s/he has the right to apply to the court for an alternate “direct instructions” legal representative;

the solicitor is satisfied that the child understands (1) and (2) above.

Family law
R4864: February 2015 — Conflict of interest A previous social relationship between a person and a solicitor will not usually prevent the solicitor from acting against the interests of that person.

A solicitor was acting for a wife in a family law property settlement matter. The solicitor was a longstanding friend of the wife. The husband claimed that the solicitor was conflicted on the basis that the wife gained an advantage by having her longstanding friend as her legal representative. No explanation of the advantages over and above the usual solicitor-client relationship was given by the husband. The solicitor’s contact with the husband was limited to approximately nine occasions over the 15 year marriage, none of which could be described as involving the disclosure of his confidential information. There was no suggestion that the solicitor would be called as a material witness and there was no confidential information of the husband at risk of disclosure.

Ruling

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

The solicitor does not have a conflict of interest in acting for the client wife. The previous social relationship between the solicitor and the wife does not preclude the solicitor from acting for the wife.

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, 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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