Unsatisfactory conduct. Acting for different family members in conflict situation
This is a summary of a decision by a Lawyers Standards Committee under the Lawyers and Conveyancers Act 2006. This summary was published in LawTalk 761, 1 November 2010.
A lawyer who was the executor of an estate was censured after he acted for several different family members in breach of the Conduct and Client Care Rules governing conflicts.
The lawyer represented the estate and the wife of the deceased, who had died in 2001. The will had left a life interest in the couple’s home to the wife, with the house property to then be divided between the couple’s son and two daughters. The wife’s health deteriorated and she moved into a rest-home, and at that point the wife and three children all agreed that the house would be sold to the son. They, and the lawyer, all signed a Deed of Family Arrangement to that effect at a meeting at the wife’s rest-home.
All three children evidently believed the lawyer was acting for them, as well as for the estate and the wife. It was said for the two daughters that because of this they had not sought advice from their own lawyers.
The lawyer told the Standards Committee that he had no obligation as the executor to co-operate with the family’s wish to modify the will, but he had done this to assist the family. The lawyer’s staff solicitor had witnessed all the signatures to the deed: he told the committee that the parties had all understood what they were signing after the lawyer had explained it to them clearly, and that they had signed of their own free will.
The Standards Committee found, however, that the lawyer had acted in breach of Rule 6.1 of the Conduct and Client Care Rules. This prevents a lawyer acting for several clients on the same matter when there would be a more than negligible risk that the lawyer would be unable to discharge his or her duties to one or more of the clients.
The Standards Committee noted that the Deed of Family Arrangement might well have been signed with exactly the same terms if the family members had each obtained independent advice, and the advice would have been at substantial cost to them. Nevertheless, the lawyer should have made the family members aware of the conflicted situation he was in. The Standards Committee found him guilty of unsatisfactory conduct and censured him. It made no order for costs.