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Litigation funding in the spotlight

Litigation funding in the spotlight

By VLRC


Ethical dilemmas are part of everyday practice for solicitors. The LIV Ethics Committee is available to help. Wills and estates R4918 – March 2017 — Conflict of duties concerning current clients ASCR 11 Where there are co-executors in an estate matter, a law firm should not disburse funds held in trust unless it receives joint instructions from all executors or a court order. A law firm acts for two executors (X and Y) of a deceased estate. X and Y are sisters and the stepdaughters of their deceased stepfather and the sole beneficiaries of the stepfather's estate. Probate has been granted to X and Y. All relevant assets have been sold and other assets collected and approximately $60,000 is held in the law firm's trust account awaiting final distribution. A dispute has arisen between X and Y regarding distribution. The law firm has forwarded an authority for the final distribution of the $60,000 to be divided equally between X and Y, but only Y has signed the Authority. X is refusing to do so unless certain conditions are met. The law firm seeks a ruling as to what it should do with the $60,000 held in its trust account. Ruling In the opinion of the Ethics Committee and on the information presented: The law firm should not disburse the $60,000 held in its trust account unless it receives joint instructions from the two executors or a relevant court order such as an order made under Order 54 of the Supreme Court (General Civil Procedure) Rules 2015, or an order discharging or removing a co-executor. 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/Professional-Practice/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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