NON-BINDING ETHICS RULING (2018) 2

Transcription

1 Fidelity Service Courage NON-BINDING ETHICS RULING OF: Ethics Committee, Queensland Law Society PUBLISHED ON: 10 April 2018 CATCHWORDS: NON-BINDING ETHICS RULING QUEENSLAND LAW SOCIETY ETHICS COMMITTEE CONFLICT LAWYERS whether Firm B should withdraw from acting for Client B who is the executor and beneficiary of the Estate of Client A deceased LEGAL RESOURCES: Rule 27 of the Australian Solicitor Conduct Rules 2012 GE Dal Pont Lawyers Professional Responsibility (Thomson Reuters, 5 th ed, 2013) Chapman v Rogers; ex parte Chapman [1984] 1 Qd.R. 542 Hempseed v Ward & Anor [2013] QSC 348 Kallinicos v Hunt (2005) 64 NSWLR 561 Larke v Nugus (2000) WTLR 1033 Premier Capital (China) Ltd v Sandhurst Trustees Ltd [2012] VSC 611 Watkins v Christian [2009] QCA 101 INTRODUCTION 1. This is a non-binding ethics ruling by the Ethics Committee of the Queensland Law Society. 2. The ruling relates to a dispute between Firm A and Firm B, as to whether the latter should withdraw from acting for Client B as executor and beneficiary of the estate of Client A, deceased. FACTS 3. The following are the pertinent facts as agreed by Firm A and Firm B. 4. Client B was the son of Client A. 5. Client A s native language was a Southern European language. At all material times, she could only speak in, and understand, simple English phrases and sentences. For more complex spoken communication, she preferred to speak, and be spoken to, in her native tongue. She could only read and understand simple English text.

2 6. Client B was a client of Firm B prior to June On 3 June 2014, Client A met with Solicitor B who was the then principal of Firm B, for the first time, they having been introduced by Client B on that day. 8. The purpose of the meeting was to obtain Client A s instructions for the drafting of a will. 9. Solicitor B did not interview Client A alone; Client B was present throughout the meeting. 10. Contemporaneous notes of the meeting were taken by Solicitor B, who recorded them in handwriting on two pages of paper. 11. Instructions were received by Solicitor B partly from Client A and partly from Client B. Client A spoke in broken English, after which she conversed with Client B partly in her native tongue and then partly in English. She referred to her home in English and then pointed to Client B. 12. Solicitor B did not seek to have an independent interpreter present. Nor did he seek medical evidence of Client A s testamentary capacity. 13. Following the meeting, Solicitor B drafted Client A s will. 14. A further meeting was held a week later, on 10 June 2014, between Solicitor B, Client A and Client B, at which time Client A executed the will drafted by Solicitor B. Solicitor B was a witness to the will, as was his law graduate who would later be admitted as Solicitor A. 15. Client A died in July Following Client A s death, Solicitor B commenced acting for Client B as executor of the estate. 17. On 25 September 2017, Solicitor B provided a Larke v Nugus statement 1 about the circumstances surrounding the making of the will. At the same time, he wrote to Firm A, saying that as he was a material witness, he was ceasing to act for Client B. However, his associate, Solicitor A, would continue to act for Client B. THE NATURE OF THE DISPUTE 18. Acting on behalf of Client A s daughter, Client C, Firm A contends that, notwithstanding Solicitor B ceasing to act, Firm B should withdraw from acting on behalf of Client B as executor and beneficiary of the estate. 19. Firm B rejects that call, relying on rule 27.2 of the Australian Solicitors Conduct Rules In particular, it contends that in Solicitor A continuing to act for Client B, she will not prejudice the administration of justice. THE COMPETING SUBMISSIONS Firm A s submissions 20. Client C contends that her mother s will is invalid because, at the relevant time: Client A did not have testamentary capacity to make a will; did not have adequate command of spoken or written English to attest to her understanding of the contents of the will; and may have been subject to undue influence by Client B. 1 See (2000) WTLR Queensland Law Society QLS Ethics Centre April 2018 Page 2 of 12

3 21. In contending that her mother lacked testamentary capacity, Client C says that Client A was suffering from a moderately severe progressive brain disorder at the relevant time. In particular, she notes that Client A was examined by a Geriatrician early in November Client B accompanied Client A on that occasion. In her report of November 2016, the Geriatrician noted that Client A scored 9/30 in a Mini Mental State Examination, representing severe cognitive impairment. The Geriatrician confirmed a diagnosis of a moderately severe (specified) form of progressive brain disorder, saying that it was her understanding that Client A had previously been diagnosed with this disease and had been trialled on medication to which she was intolerant. The doctor also noted a history of sudden onset of memory problems following a stroke about 10 years earlier, and a gradual deterioration in short term memory since then. 22. Client A s death certificate also recorded that dementia was a cause of death, but was silent as to the duration of that illness. 23. As a result of Client C s concerns, Firm A filed on her behalf in the Supreme Court a Caveat against Probate. 24. Firm A contends that, in acting for Client A in the drafting and execution of the will, it was Solicitor B s responsibility to assess: Client A s testamentary capacity; her capacity to understand advice given to her in spoken English; her capacity to understand the contents of the will in written English; and whether she was making the will free from undue influence. 25. As a consequence, Firm A contends that both Solicitor B and Solicitor A are material witnesses with a personal stake in the outcome of those issues, such that their independence is compromised. 26. Since Solicitor A was Solicitor B s employee and subject to his direction, Firm A says that she is not independent of Solicitor B. They were the only two solicitors in the firm. Solicitor A receives s via an address common to the practice. 27. Finally, Firm A submits that the Firm B is tainted by Solicitor B s conduct, as the latter firm bears his name and was, until recently, run exclusively by him. 28. Relying on the decision of the Queensland Supreme Court in Hempseed v Ward & Anor, 2 Firm A says that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires Firm B to withdraw as it lacks professional independence. Submissions of Firm B 29. Firm B concedes that Solicitor B is a material witness, he having taken instructions from Client A and having drafted her will. Solicitor B has ceased acting accordingly. 30. However, Firm B is of the view that Solicitor A, being an associate of the law practice, is entitled to continue to act for Client B. 31. It is said that Solicitor A is not a material witness, since she can only attest that the signature on the will is that of Client A, and nothing more. 2 [2013] QSC 348. Queensland Law Society QLS Ethics Centre April 2018 Page 3 of 12

4 32. Nor, it is submitted, could Solicitor A be said to have a personal stake in the matter beyond the recovery of proper fees for acting. 33. Further, Firm B contends that Solicitor A continuing to act for Client B will not prejudice the administration of justice. 34. It is accepted by Firm B that Solicitor B handled Client B s file for about three weeks in September/October 2017, but that was because Solicitor A was on leave. It is also acknowledged that the firm has only one shared address, which it considers to be good professional practice, to minimise the risk of receiving spam s. 35. Firm B also relies on advice that the firm received from the Society s Ethics Centre on 11 October 2017, to the effect that there was no issue in Solicitor A continuing to act for Client B; all she could do as a witness was say that she witnessed Client A sign the will and acknowledge that the signature on the will is that of Client A. Solicitor A also says that she was advised that her continuing to act would not prejudice the administration of justice, and that the opposing solicitors were using a tactic to have the firm cease acting. It was also suggested that independent counsel could be briefed were the matter to proceed to litigation. 36. It was also submitted that as Solicitor B retired early this year, Solicitor A is no longer subject to his direction. Solicitor A now practises on her own account under the name of Firm B (with a minor alteration). THE AUSTRALIAN SOLICITORS CONDUCT RULES 2012 AND THE LEGAL PRINCIPLES 37. The starting point for any consideration of whether a solicitor should be precluded from acting for a party in such instances is rule 27 of the Australian Solicitors Conduct Rules 2012 ( ASCR ), which provides: Solicitor as material witness in client s case 27.1 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice. 38. The term associate is defined in rule 44.1 of the ASCR to mean, among other things, a partner, employee or agent of the solicitor or of the solicitor s law practice. 39. Rule 27 was considered at some length by McMeekin J in Hempseed v Ward & Anor ( Hempseed ). 3 In doing so, his Honour analysed the relevant case law and succinctly summarised the relevant principles. It is both instructive and convenient to refer to that decision in detail. 3 Ibid. Queensland Law Society QLS Ethics Centre April 2018 Page 4 of 12

5 40. McMeekin J observed that (as distinct from the previous rule 13.4 of the Legal Profession (Solicitors) Rule 2007 (Qld)) the presumption is now in favour of the solicitor continuing to act. The onus is on the person seeking to restrain them to show that, if the solicitor does so, their continued acting would prejudice the administration of justice. 4 His Honour then went on to say at [37]: The rule picks up the test that is usually applied in these cases, that is whether a fairminded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process in the due administration of justice, including the appearance of justice : Kallinicos v Hunt His Honour was referred to the comments of Campbell CJ in Chapman v Rogers; ex parte Chapman, 6 that it is generally unwise for a solicitor, who is not himself appearing as advocate or an instructing solicitor in court, but who is aware that it is likely that he or she will be called as a material witness (other than in relation to formal or non-contentious issues), to continue, whether personally or through his or her firm, to represent the client if that can be reasonably avoided. Invited to accept that statement as a universal principle, McMeekin J declined, saying that it is not and probably was never meant as such. It certainly does not accurately represent the law in Queensland. 7 In support of that conclusion, his Honour relied on the observations of Muir JA (with whom Fraser JA and White J agreed) in Watkins v Christian, 8 that Campbell CJ was not purporting to propound a universal principle and that in fact there was no such principle ; rather, what is not proper or permissible will depend in each case on a careful analysis of the relevant facts. 9 Indeed, in Watkins v Christian, the Court emphasised the folly of attempting to decide such a question before the relevant facts can be ascertained: it is unnecessarily speculative to attempt to predict before a defence has been filed, what witnesses will be called and the materiality of their evidence Having established that there is no universal principle, McMeekin J cited with approval the following remarks of Brereton J in Mitchell v Burrell 11 as accurately identifying the approach he should adopt: [20] That said, I do not accept that the mere circumstance that a solicitor will be a material witness, even on a controversial matter, of itself justifies restraining the solicitor from continuing to act. As Windeyer J pointed out in Scallan v Scallan [2001] NSWSC 1078, it is, for example, not unusual for instructing solicitors in contested probate proceedings to give evidence of facts relevant to instructions for and execution of a Will. Similarly, in contested conveyancing proceedings, it is not unusual for solicitors who have acted on the 4 Ibid, [36]. 5 (2005) 64 NSWLR 561 per Brereton J. 6 [1984] 1 Qd.R. 542, at [2013] QSC 348, [39]. 8 [2009] QCA Ibid, [37]. 10 Watkins v Christian [2009] QCA 101, [38] and [40] (Muir JA, Fraser JA and White J agreeing). 11 [2008] NSWSC 772. Queensland Law Society QLS Ethics Centre April 2018 Page 5 of 12

6 conveyance to continue to act in the proceedings for specific performance or rescission and to give evidence in those proceedings. Accordingly, despite Rule 19 of The Law Society of New South Wales Professional Conduct and Practice Rules, which imposes a professional obligation (as distinct from a private right), I do not accept that in every case where a solicitor acting for a party is a material witness even on a controversial matter, the Court will restrain the solicitor from continuing to act. Although some observations of Campbell CJ in Chapman v Rogers; ex parte Chapman [1984] 1 Qd R 542, 545, may go somewhat further, the cases indicate - as Campbell CJ did in that case itself that the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests require the lawyer to be restrained from continuing to act. [21] The point is illustrated, in Windeyer J s judgment in Scallan (at [10]), by his Honour s reference to the difference between the case where the (mere) interest of a solicitor is one that arises simply in supporting the success of his or her client (for example, in connection with advice about discovery or the commencement or continuation or abandonment of proceedings), and the case where the solicitor has an interest in the result of an action additional to his interest in doing his best for a client to have success in an action. Similarly, in Kooky Garments Ltd v Charlton [1994] 1 NZLR 587, Thomas J recognised the distinction between the situation where solicitors were, in effect, called on to defend their own actions or advice on the one hand in which case it was inappropriate that they act and other cases (at ): What I have said, of course, does not apply where the advice given is unrelated to liability or the question in dispute. Advising a client to prosecute or defend a claim does not attract these observations. They are restricted to the situation where the acts or omissions of the solicitors are an integral part of the other party s complaint or the client has been sued in circumstances where he or she was acting on the advice of their solicitors and it is effectively that advice which is in issue. In such cases, apart altogether from the position of the client, the Court is not receiving the assistance of counsel who are observably independent. Independence is a function of counsel. The Court is entitled to assume that solicitors and counsel appearing before it possess that independence Ibid, [42]. Emphasis appears in the original passage quoted. Queensland Law Society QLS Ethics Centre April 2018 Page 6 of 12

7 43. Similarly, in his work, Lawyers Professional Responsibility, Professor G.E. Dal Pont expresses the view that a lawyer must not accept a retainer if there is reason to believe that he or she will be required to give evidence material to the determination of contested issues before the Court; if that becomes apparent during the course of the proceedings, the lawyer should withdraw. 13 Professor Dal Pont identifies several reasons for reaching that conclusion: 14 (a) For the lawyer to appear as a witness confuses the lawyer s role. The lawyer s role is to present the case and test the evidence and arguments. Conversely, a witness role is to provide sworn testimony of facts within his or her personal knowledge or expertise. There is also a risk that appearing as a witness, the lawyer may be placed in a position where his or her duty to the Court or his or her own interests, conflict with the duty to the client. (b) By appearing as a witness, the lawyer may have his or her objectivity and independence queried. That may have a deleterious effect on public opinion of trials and the profession more broadly. (c) The lawyer s effectiveness as an advocate could be impaired if his or her credibility as a witness is impeached. (d) The finder of fact may place undue weight on the testimony of an officer of the Court. (e) Perhaps not relevant to civil proceedings, in a criminal matter the lawyer acting as a witness could produce a miscarriage of justice sufficient to substantiate an appeal against a conviction. Professor Dal Pont goes on to say that these reasons also justify extending the application of his statement to solicitors who instruct counsel Relying on the observations of Pagone J in Premier Capital (China) Ltd v Sandhurst Trustees Ltd, 16 McMeekin J also set out the various considerations that can impact on the Court s exercise of jurisdiction to restrain a solicitor from acting in a particular case. They can be summarised as follows: 17 (a) The exercise of the Court s jurisdiction to restrain a solicitor from acting is exceptional and must be exercised with caution. (b) The jurisdiction to restrain a practitioner from acting for a client in judicial proceedings is an incident of the Court s inherent jurisdiction over its officers to control its process in aid of the administration of justice. (c) An important consideration against the exercise of the jurisdiction is that a litigant should not be deprived of his or her choice of lawyer without good cause. (d) Applications by opposing parties for the removal of their opponent s lawyers should not be made lightly and need scrutiny. 13 G E Dal Pont, Lawyers Professional Responsibility, (Thomson Reuters, 5 th ed, 2013), [17.45]. 14 Ibid. 15 Ibid. 16 [2012] VSC [2013] QSC 348, [43]. References to authorities and citations have been omitted. Queensland Law Society QLS Ethics Centre April 2018 Page 7 of 12

8 (e) A party seeking the removal of an opponent s legal practitioner is not seeking to exercise a right, but moving the Court to exercise its power over its own officers. (f) An applicant may have obligations to the Court when making such applications to satisfy the Court that the application is necessary and not made for collateral advantage. (g) It is therefore essential that an injunction to restrain a practitioner from acting on behalf of a client must be firmly based on the need for that to occur in the administration of justice. (h) The test to be applied in the exercise of this jurisdiction was: the objective test to be applied is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required that the lawyer be prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of lawyer without good cause. (i) In application of the test, sight should not be lost of the severity of the consequence of such an order for the client. The conclusion to be reached is that justice requires a client to be deprived of his or her choice of lawyer. That has been said by Professor Dal Pont to require the Court s inquiry into whether a fair-minded, reasonably informed person would find it subversive to the administration of justice to allow the representation to continue. 18 CONSIDERATION 45. Whether the Court decides to exercise its jurisdiction to restrain Solicitor B (or Solicitor A s practice, Firm B) from acting for Client B in the inevitable litigation is a matter for it. As has already been said, that jurisdiction is to be regarded as exceptional and is to be exercised with caution, after all the relevant facts have been ascertained. 46. Without the benefit of statements from the relevant witnesses or a detailed articulation of the material issues in dispute, it is difficult for the Committee to express a final and conclusive view on whether that jurisdiction should be exercised in this instance. 47. Notwithstanding that, the Committee has, based on the material presently before it, a number of reservations concerning the continued involvement of Solicitor B (and Firm B) in the matter. Consequently, it urges caution in the circumstances. The Committee s observations and reasoning follow. Timing considerations 48. The circumstances of the present matter are complicated further by the fact that since the issues were first aired, the roles of the principal participants altered, as did the relationship between them. Until late last year, Solicitor B conducted a practice, Firm B, of which he was the sole principal; Solicitor A was his (only) employed solicitor. However, as from early this year, Solicitor B retired. Solicitor A now conducts a practice (with a minor alteration) under the 18 G E Dal Pont, Lawyers Professional Responsibility, (Thomson Reuters, 5 th ed, 2013), [17.20]. Queensland Law Society QLS Ethics Centre April 2018 Page 8 of 12

9 name of Firm B. It is not known whether Solicitor B retained any relationship with Firm B as, for example, a consultant. 49. Subsequent to the request for the non-binding ruling being received by the Committee, Solicitor B passed away. The Committee has nevertheless been asked by the parties to continue with its consideration of the issues. 50. For present purposes, the Committee has considered the relevant issues and the application of rule 27.2 of the ASCR by reference to the two distinct time periods: the period up to Solicitor B s retirement, concerning his practice, Firm B; and the subsequent period, involving Solicitor A s practice, Firm B. It might be thought that the former period no longer has relevance. However, the Committee believes that it is appropriate to also consider it, both for completeness, and so that its reasoning can be fully explained and understood. The period up to Solicitor B s retirement: Solicitor B and Firm B 51. Following the preparation of his Larke v Nugus statement, Solicitor B advised Firm A on 25 September 2017 that he was ceasing to act for Client B on the ground that he would be a material witness. The Committee agrees that was the appropriate and prudent course to take, bearing in mind the allegations made by Firm A on behalf of Client C, concerning Client A s testamentary capacity to make a will; her understanding or command of written and spoken English and her ability to understand the contents of the will; and the prospect of Client A having been subject to undue influence by Client B. In those circumstances, it is inevitable that Solicitor B s conduct, in taking Client A s instructions, and drafting and witnessing her will, will be the subject of close scrutiny, if not criticism, in any ensuing litigation. 52. Where the Committee diverges from Solicitor A is whether Firm B should likewise have withdrawn from acting for Client B, and so allow fresh and independent lawyers to be retained. 53. In advising Firm A of his decision to cease acting, Solicitor B indicated that, pursuant to rule 27 of the ASCR, his then associate, Solicitor A, would continue to act for Client B. That statement is significant for what it did not say. There are three matters implicit in it. First, that Solicitor A considered that she personally would be able to continue to act for Client B; second, that Solicitor A s employer practice, Firm B, would necessarily also continue to act for Client B as a consequence (Solicitor A not being a principal at that stage); and third, that the arrangement would not prejudice the administration of justice. It is that last point in particular that the Committee believes needs to be considered. 54. Solicitor B was, at the time he ceased acting, the sole principal of Firm B. Solicitor A was an employee and the only other solicitor in the practice. It seems to the Committee incongruous that Solicitor B, apparently having already concluded that it was appropriate, in the interests of the administration of justice, that he personally cease acting for Client B, somehow considered that the practice of which he was the sole proprietor, could nevertheless continue to act. To put it another way, if the hypothetical fair-minded, reasonably informed observer of whom Brereton J and McMeekin J speak (in Kallinicos v Hunt and Hempseed respectively) considered that it was inadvisable for Solicitor B to continue to personally act for Client B, it is likely that they would have reached the same conclusion concerning his practice, Firm B. Queensland Law Society QLS Ethics Centre April 2018 Page 9 of 12

10 55. As mentioned already, it is inevitable that Solicitor B s conduct will be subject to close scrutiny and criticism (regardless of whether it is ultimately made out). With acts or omissions on his part seemingly being prominent amongst Client C s complaints, he had a personal stake in the outcome of the proceedings; it went to his reputation and that of his practice. The risk of reputational damage to both Solicitor B and his practice serves to reinforce why, in the interests of the administration of justice, it was desirable that Solicitor B and his firm withdraw from acting for Client B, so that he could be represented by independent and objective lawyers unfettered by concerns about their own interests. 56. Those considerations are equally apposite to Solicitor A continuing to act for Client B. As an employee of Firm B and not at that stage practising as a principal, her continuing to act for Client B necessarily meant that she was doing so under the auspices of Firm B. 57. The Committee does not believe that the problem could be overcome by the briefing of independent counsel. As Professor Dal Pont observes, the rationale behind the rule justifies extending its application to solicitors who instruct counsel. 19 Otherwise, there would be the risk of counsel s independence being inadvertently compromised. 58. Nor does the Committee believe that the implementation of an information barrier between Solicitor B and Solicitor A would have dispelled the perception of Solicitor B having a personal stake in the ensuing litigation. In any event, the Committee has reservations as to whether an effective information barrier could have been enforced in this case, given the use of a common address for the firm and the transfer of the file to Solicitor B when Solicitor A was on leave for three weeks. 59. Before proceeding further, the Committee notes Solicitor A s submission that, in continuing to act for Client B, she relied on guidance received from the Society s Ethics Centre ( Centre ). 60. In October 2017, Solicitor A sought guidance from the Centre. She was advised that there was no issue with her continuing to act for Client B and that in doing so, she would not prejudice the administration of justice. In particular, she was told that that if she were called as a witness in a contested matter, all she could say was that she was a witness to the will and do nothing more than acknowledge that the signature on the will was that of Client A. 61. Relevantly, the information concerning the contact with the Centre was third hand, it having been provided to the Committee by Firm A which apparently recounted what Solicitor A told it of her conversation with the Centre solicitor. The Committee has not sought to verify those matters with the particular Centre solicitor, as its role in matters such as this is not as a determiner of facts. It is noted, however, that the guidance was given during a telephone call and without reference to the written material which formed the basis of the current referral to the Committee. Nor is it clear whether the allegations concerning Solicitor B s taking of instructions from Client A, and the drafting and execution of her will, were mentioned to the Centre solicitor. It is therefore unclear what information was used as the basis for the advice. 19 See paragraph 43 above. Queensland Law Society QLS Ethics Centre April 2018 Page 10 of 12

11 For those reasons, the Committee has preferred to rely on the material which accompanied the request for this ruling. The period following Solicitor B s retirement: Solicitor A and Firm B 62. Since early this year, Solicitor A has practised on her own account under Firm B s name (with a minor alteration). As mentioned earlier, it is not clear whether Solicitor B had any ongoing relationship with that firm prior to his death. Although it is not expressly stated, it is understood that Solicitor A continues to act for Client B in relation to Client A s estate. 63. Firm A has indicated to Solicitor A that it considers she will be a material witness, in that she witnessed Client A s will. However, Solicitor A denies that warrants her ceasing to act, as her evidence would be limited; all she can say is that she witnessed Client A sign the will, and acknowledge that the signature is that of Client A. Without knowing the full facts and the contentions on behalf of Client C, it is premature to draw a final conclusion as to whether Solicitor A will in fact be called as a witness and if so, the nature and materiality of her evidence. 64. However, following the passing of Solicitor B and in the absence of other witnesses (apart from Client B), it is increasingly likely that Solicitor A will be a witness. Indeed, Firm A contends that Solicitor B s passing adds a further layer of difficulty for Solicitor A continuing to act, in that any evidence to be provided in relation to (Solicitor B s) role will presumably have to be provided by Solicitor A in addition to her own evidence on her role in, and knowledge of, the matter. 20 In response, Solicitor A says that all she will be able to do is to exhibit a copy of Solicitor B s Larke v Nugus statement to her affidavit. She does not see how Solicitor B s passing makes her a material witness, nor how the exhibiting of his statement to her affidavit will prejudice the administration of justice Assuming for the time being that Solicitor A is likely to be called as a witness, the question will undoubtedly arise as to whether her continuing to act for Client B in those circumstances will prejudice the administration of justice. 66. Although Solicitor B had retired prior to his death and Solicitor A is in practice on her own account, they were, and remained, inextricably linked. It appears that Solicitor A worked for Solicitor B for some time at least since At the time Client A executed her will in June 2014, Solicitor A was employed by Firm B as a law graduate. By the time of Client A s death in July 2017, Solicitor A was the only employed solicitor in the firm. On Solicitor B ceasing to act for Client B, Solicitor A assumed responsibility for the matter, during which time she resisted Firm A s calls to likewise cease acting. While the specific arrangements are unknown, it appears that on his retirement at the end of last year, Solicitor B seamlessly transferred his practice to Solicitor A, whereupon she commenced practising on her own account, though the practice name underwent a slight change. Solicitor A continued to act for Client B. 67. The Committee has already expressed its reservations regarding Solicitor A continuing to act for Client B under the auspices of Firm B. Those reservations are not addressed by the fact 20 Letter, Firm A to QLS Ethics Centre dated16 February , Solicitor A to Ms Grace van Baarle, QLS Ethics Centre, dated 20 February Queensland Law Society QLS Ethics Centre April 2018 Page 11 of 12

12 that Solicitor A now continues to act under the auspices of her new practice. As said earlier, she and Solicitor B were inextricably linked, she describing him as a wonderful mentor and role model. Moreover, the fact that she continues to practise under a firm name bearing a close resemblance to Firm B suggests that she may have a personal, reputational interest in the outcome of any litigation concerning Client A s estate; any adverse findings against Solicitor B have the potential to damage the reputation of the practice now conducted under the name of Firm B. 68. Those reservations are only heightened by the fact that Solicitor A will more than likely have a greater role in the litigation as a witness. Her appearance in that capacity would not only confuse her role as Client B s lawyer, but would lead the fair-minded, reasonably informed observer to question her objectivity and independence. 69. Having regard to those matters, the Committee considers it would be inadvisable for Solicitor A to continue acting for Client B. 70. In considering that question, the Committee also notes the following discretionary matters which may be relevant factors. First, the matter appears to be at a relatively early stage, such that costs thrown away as a result of a change in representation would presumably be relatively modest. Second, while it is the prerogative of a party to have the representation of its choosing, it is noted that Firm B does not appear to claim any particular knowledge or expertise which would require its retention by Client B. Finally, from a purely commercial and pragmatic perspective, it is desirable that disputes over representation, such as the present, be resolved as expeditiously and cheaply as possible so that attention can be directed towards the substantive matters in dispute between the respective clients. In short, solicitors should, as far as possible, attempt to avoid themselves becoming the issue, which otherwise distracts and diverts attention from the substantive issues, and delays their resolution. CONCLUSION 71. To summarise the Committee s views: (a) The decision by Solicitor B to cease acting for Client B was both appropriate and prudent. (b) On Solicitor B s ceasing to act, Firm B should likewise have withdrawn from acting for Client B. In the circumstances, it was incongruous that the firm (through Solicitor A) continue to act when Solicitor B himself thought he was incapable of doing so. Further, the risk of reputational damage to Solicitor B and his practice meant that he had a personal stake in the ensuing litigation, which in turn raised the potential for conflict. (c) Having regard to its reservations as to the wisdom of Firm B continuing to act, the inextricable link between Solicitor B and Solicitor A, the increasing likelihood that Solicitor A will be a key witness in any litigation, and the discretionary factors mentioned above, the Committee considers that it would be inadvisable for Solicitor A to continue to act for Client B. Queensland Law Society QLS Ethics Centre April 2018 Page 12 of 12