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Lawyers Complaints Service: Conflict of interest was a breach of the Rules

28 April 2014

A lawyer, D, has been censured and fined for acting for a client, A, in respect of allegations made by A’s daughter at the same time as D was also acting for another client, B, who was alleged to have committed sexual offences against the daughter.

A complained, and a lawyers standards committee has determined that there was a clear conflict of interest which D should have been careful to avoid.

When A’s daughter alleged that A had assaulted her, he instructed D to act for him in relation to the resulting care and protection proceedings.

At about the same time D had received legally aided instructions to act for B, who was charged with sexual offences against A’s daughter.

A discovered that D was acting for B when he saw her at B’s sentencing hearing. He complained to the Law Society about the conflict of interest, and also that D had overcharged him and had not acted in a timely or effective manner while acting for him.

The standards committee said its primary concern was in relation to the allegations about conflict of interest.

D canvassed this issue only briefly in her response to the committee, but she did say that she believed A had known about her instructions. A claimed, however, that he had known nothing about D acting for B until he saw her in court at the sentencing.

The standards committee said there was a clear conflict of interest. It was reasonable to assume, the committee said, that there was a “real possibility” D could have held information in respect of one client which might be of significant interest to the other.

This was, the committee said, a “clear breach” of Rules 6 and 6.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. Rule 6 requires a lawyer to protect and promote the interests of the client, within the rules and the law, to the exclusion of the interests of third parties.

Rule 6.1 provides that a lawyer must not act for more than one client on a matter in any circumstances “where there is more than a negligible risk” that the lawyer may be unable to discharge the obligations owed to one or more of the clients.

The standards committee noted that the appearance of independence was also important. The committee said A was justified in his concerns about D properly representing his interests when she was also acting for a person who had committed offences against his daughter.

D was unable to produce a file note showing she had advised A that she was also acting for B. The standards committee said that in any conflict of interest situation, a prudent lawyer would make a file note or record the issue in correspondence, with both clients.

B had not complained, but the standards committee said it was as concerned about the independence of the advice B had received as it was about the advice to A.

D said that B had pleaded guilty to the charges early on, and thus D’s primary role was concerned with B’s sentencing for the charges against A’s daughter. The standards committee’s investigation revealed, however, that D had been instructed to act for B before his plea, and that there had been some preliminary matters which had had to be dealt with before he pleaded guilty.

Given the clear conflict of interest and established breach of the rules, the standards committee did not consider it was necessary to consider the other grounds of complaint.

The committee found that D’s conduct was unsatisfactory. As well as the censure and a $500 fine, the committee ordered D to apologise, to refund the fees paid by the complainant and pay $500 costs to the Law Society. D was also required to attend the next ethics course that dealt with conflict of interest issues.

Last updated on the 17th March 2016