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Ethics Committee rulings: Duty of confidence

Ethics Committee rulings: Duty of confidence

By LIV Ethics Committee

Ethics Practice & Procedure 

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

Wills and estates

CONFIDENTIALITY (RULE 9) 

(R4934 – SEPTEMBER 2018) 

Where a firm holds the documents of a deceased client, the firm is obliged to provide the documents to the legal personal representative of the client on request. It is prudent for a firm to wait until the authority of the executor is confirmed as legal personal representative after probate has been granted. The duty of confidence owed to the deceased is passed on to their legal personal representative, as does the right to assert or waive privilege.

The law practice sought guidance on whether it was ethically obliged to provide documentation from a former and now deceased client file to the executor of that client’s estate and a beneficiary of that estate. The executor and the beneficiary were the daughter and son respectively of the deceased. The law practice was retained to draft wills and powers of attorney for the deceased client. Three wills were prepared over a period of two years, which all dramatically changed the distribution of the estate, and changed which family members were appointed as executor. Probate had not yet been granted. 

The law practice sought guidance on three issues, first, whether it was obliged to provide client documentation to the executor or the beneficiary. Second, whether the law practice was obliged to provide a medical report as to the deceased’s capacity after the preparation of the final will. Finally, the law practice queried whether it was obliged to provide a letter of advice which the deceased signed, advising of the risk of dispute due to the disparity of the distribution of the estate between the deceased’s children. 

Ruling 

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

  1. The law practice owes a duty of confidence to the deceased which on the death of their former client passes to the client’s personal legal representative. 
  2. The client documents contained on the deceased’s file form part of the deceased’s estate.
  3. To the extent the client documents include communications covered by client legal privilege, privileged information is protected from compulsory disclosure unless the privilege is ousted by statute or waived. Privilege survives the death of the client and passes to the deceased personal representative or successor in title as a right to be asserted or waived. 
  4. The law practice is obliged to provide the client documents from the deceased’s client file to the deceased’s personal legal representative, although it is usually prudent to wait until the executor’s authority is confirmed by a grant of probate. A medical report obtained for the purposes of conducting the deceased’s matter is a client document. ■

 

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.

For further information, contact the Head of Ethics on 9607 9336.

 


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