Can I act? Should I act?

Mr Giaimo Snr (the will-maker) executed his final will on 26 April 2023 (the will) and died about one year later. The will named one of the will-makers three sons as sole executor and sole beneficiary. The will-maker’s penultimate will had named his three sons as executors and left his estate to them equally. The disinherited sons lodged a caveat with the Registrar of Probates and objected to the executor’s application for a grant probate of the will. The principal ground of objection was an assertion that the will-maker lacked testamentary capacity in the lead up to and at the time he executed the will.

In proceedings issued by the objecting sons, the executor was represented by the practitioner who took instructions for, drafted, and was a witness to the execution of, the will (the will-drafter). When it was raised with the will-drafter that they should cease to act as they would be required to give evidence in the proceeding about the will-maker’s testamentary capacity, the conduct of the proceeding was transferred to another practitioner in the will-drafter’s practice (the employee).

The matter came before the Court on an application that the will-drafter’s practice be restrained from acting for the executor in the proceeding.

Although the Court did not start here, LPLC considers it useful to look first at Rule 27 of the Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 which provides as follows:

27 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.

27.2 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 must not continue to act for the client if doing so would prejudice the administration of justice.

The Court summarised the applicable principles and authorities at paragraphs 23 – 30 of its judgment.

Based on the cases referred to in the judgement, the Court was concerned to protect the integrity of the judicial process and the administration of justice, which includes clients being represented by observably independent and objective lawyers.

Case law requires that practitioners be unfettered by concerns about their own interests, including their liability, should the client’s claim or defence fail. Case law also states that any of the following things may constitute a personal interest inconsistent with the practitioner’s duty to the Court or to the client:

• if a practitioner’s credibility is at stake as a witness; or
• if a practitioner is called upon to defend their actions and advice; or
• if a practitioner’s personal integrity may be put in issue.

The practice had taken steps to isolate the will-drafter by appointing one of its employees to assume the conduct of the matter, but this was not sufficient for the Court to dismiss the application. This is despite evidence being led that:

• the will-drafter had not spoken to the executor client since the employee took over conduct of the matter and would not be doing so moving forward
• the will-drafter had not spoken to the employee about the matter other than in relation to the restraint application since the employee took over conduct of the matter and
• an ethical wall had been established to prevent the will-drafter from inspecting the file.

The Court held that the conflict that the will-drafter may face when giving evidence between his duty to the Court and his client on the one hand, and concern for the protection of his reputation on the other, was not negated by the steps taken. This was because a fair-minded observer would likely conclude that it would be only natural for the employee to feel reluctant in giving independent advice or taking steps in the proceeding that might put them in conflict with the interests of, their principal. Such an interest was at odds with the employee’s duty to the Court, and to their client, to bring an independent and objective mind to the proceeding. Such a mind must be unfettered by concerns about the personal interests of the will-drafter and the practice in the outcome of the proceeding, and the employee’s own position in the practice.

The Court acknowledged that it must proceed with caution, and the public interest in litigants having their choice of legal representation. Despite this the Court was persuaded that as the practitioners had an interest in the outcome of the proceeding beyond recovery of costs and vindication of the client’s interests the will-drafter’s practice would be restrained from acting.

• Practitioners must have a good working knowledge of the Conduct Rules as the answer to a question like the one raised in Re Giaimo (No 1) may be there.
• It is for the practitioner and not the client to assess the ethical position of the practitioner.
• Telling a client you cannot act can be difficult, but practitioners should keep in mind that their primary duty is to the Court and to the administration of justice.
• Ethical dilemmas can be complex, and discussing them with a trusted colleague or mentor can help you make a more objective decision.
• If a potential conflict exists it is often more time and cost effective for the client to appoint alternative representation from the start.