Unsatisfactory conduct: Lawyer acted for both sides
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 782, 7 October 2011.
After acting for one side in a relationship property dispute while also being the instructing solicitor for the other, a lawyer was found guilty of unsatisfactory conduct by a Lawyers Standards Committee.
The committee censured and fined him $500, and also ordered him to implement a system for identifying conflicts of interest.
The lawyer had filed a notice of claim for the wife as instructing solicitor under a reverse brief (that is, the lawyer had been briefed by the wife’s barrister, with whom the wife had made the initial contact). Despite this, the lawyer then agreed to act for the husband, who was the complainant.
The lawyer told the committee he had made clear to the husband his role as instructing solicitor for the other side, but the husband had continued to instruct him for seven weeks after this.
Not only was there no conflict of interest, the lawyer said, but the husband had not shown any damage or prejudice to his case. The lawyer’s role for the wife had been limited to preparing and lodging the notice of claim, and he never had any detailed knowledge of the couple’s relationship property before he began acting for the husband.
The committee found the lawyer had breached chapter 6 of the Conduct and Client Care Rules, which deals with conflicting duties to clients. It said the lawyer did not seem to realise he continued to be the wife’s instructing solicitor while he acted for the husband, and was therefore acting for both sides on a matter where he would be unable to discharge the obligations owed to each of them (see Rule 6.1).
The lawyer maintained that the husband had consented to the arrangement, but even if that was so, there was no evidence the husband had obtained independent advice.
The committee said the complaint highlighted the difficulties of a reverse brief. The lawyer needed a better system for identifying conflicts, particularly if the barrister was to continue naming him as instructing solicitor as a matter of course.
The committee also ordered him to provide evidence, within one month, of a system for identifying conflicts of interest and ordered him to pay $500 costs to the Law Society.