Letter of Advice 113

Ethical Lawyers & Co.
Letter of Advice SID:219577629
9 October 2020
Mr Carl Peers
Just Us Law
66 Sixth Ave
Helleville 3666
File No: 366 6933
Dear Mr Peers,
Legal Advice Regarding Potential Breaches of Ethical Obligations.
Thank you for attending your recent appointment with us to discuss ethical queries in relation
to conduct as a Victorian Legal practitioner.
In brief, the overarching issue here is whether there has been a breach of the ethical
obligations owed by you1, with respect to three separate incidents you have sought advice on
relating to the Legal Profession Uniform Law Solicitors’ Conduct Rules 2015 (Conduct
Rules). 2 In reviewing the details provided by you in our consultation, we have identified
several concerns with respect to potential breaches for your consideration. There were three
separate situations in which issues for concern were noted. Firstly, in not fulfilling the
conditions of the undertakings, as per the ‘funding agreement’3 with Talbot and Justice Now,
it is arguable that you may have breached rule r 6.1 4 to complete undertakings in a timely
manner5. There are also issue of contention with respect to r 12.1 6surrounding a conflict of
interest which may have arisen in relation to counsel given to Talbot to accept settlement
from WorkCover. With respect to Alice’s late husband’s un-endorsed Will, presented as a
1
Legal Professional Uniform Law Australian Solicitors’ Conduct Rules 2015, (‘Conduct Rules’) Pt 1(1.1).
2
Ibid.
3
Nickolas James and Rachael Field, ‘The New Lawyer’, (Wiley, 2013) (The New Lawyer) 424.
4
Conduct Rules (n1) r 6.1.
5
Atanaskovic Hartnell (a firm) v Birketu Pty Ltd [2020] NSWSC 573.
6
1
Word Count: 2478 (not inc footnotes) 25 Justice Street Lawland 1100
Ph: 3277 9494
Jonesba@deakin.edu.au
Ethical Lawyers & Co. Letter of Advice SID:219577629
duly executed; it is likely to be in breach of r 22.1 7 which prohibits a solicitor to make false
or misleading statements to opponents and to a greater extent a breach of r 19.18 to not
deceive the court. Finally, in your negotiations solicitor Davey (in the course of acting for
Leo), the statement you made to call the Legal Services Commission (‘LSC’) could arguably
be interpreted as a vexatious threat which may find you in breach of r 21.4 9 which prohibits
solicitors making unjustified allegations of misconduct against their opponents, unless there
is reasonable grounds.
Reasoning and particulars for our advice has been provided for you below.
Advice in Relation to Talbot

Potential Breach of Duty to the Client10
The issue is whether there was a potential breach of the ethical obligations set out in the
Solicitors Uniform rules11 by not adequately fulfilling the undertakings - set out in the
‘Funding Agreement’ with Justice Now - failing to provide timely tri-monthly reports and
financial transparency to the funders of your client, Talbot.
Solicitors Conduct rules, r 6.1 12 state that a solicitor, in the course of legal practice, must
honour undertakings effectively in a timely manner. Additional to this is, Rule 7.1 sets out
that a solicitor must provide clear and timely advice, to enable clients to make informed
decisions during the course of the proceedings – ‘consistent with the terms of engagement’.13
As set out in Atanaskovic Hartnell (a firm) v Birketu Pty Ltd (‘Atanaskovic case’), committed
adherence of solicitor in professional practice to his or her undertakings is of significant
importance, upon which accreditation to practice is dependent. 14 This case also outlines that
the obligations of the solicitor to the client should be fulfilled as a fiduciary with respect to
cost agreements, carrying out terms specified withing that contract. 15
7
Ibid r 22.1.
8
9
Ibid (n1) r 21.4.
10
Conduct Rules (n1) r 4.1.1.
11
Conduct Rules (n1).
12
13
14
Atanaskovic Hartnell (a firm) v Birketu Pty Ltd [2020] NSWSC 573 (‘Atanaskovic case’) [39].
15
Ibid [44].
2
Ph: 3277 9494
Rule 9.1.1 sets out that confidential client information may not be disclosed – unless it be to
an ‘associated entity for the purposes of delivering or administering legal services in relation
to the client’ 16– which would arguably include Justice Now – as a charitable organisation that
provides litigation funding.17 Furthering galvanising this is r 9.2.118 which provides that a
solicitor may disclose confidential information if the client expressly authorises disclosure,
while r 9.2.6 19permits disclosure to ‘associated entities’20.
Finally, of worthy consideration in this matter is r 12.1, which sets out that a solicitor must
not act for a client where there is a conflict of interest that may benefit the interest of the
solicitor over the best interests of the client, in the instance of these two interests competing.21
By signing a funding agreement with Justice Now, to act on behalf of Talbot, you have
consented to the conditions of the agreement, including undertakings to provide tri-monthly
progress reports, as well as notifying any change in the clients’ financial status. By reporting
substantially later than what was required for the second, third and fourth case progress
reports, it is likely that you would be in breach of Solicitors’ Conduct Rule s 6.1 that state
undertakings must be honoured in a timely manner.22 Furthermore, there is a possibility that
you may subsequently be in breach of r 7.1, 23 as the delay of these progress reports could
have arguably impacted the ability for the client to make an informed decision to provide
instruction.24
With respect the $140,000 payment from WorkCover to Talbot, as a part of the funding
agreement undertakings, you were required to inform Justice Now of this payment “within a
timely manner’ 25 as it was a change in Talbot’s financial circumstances. It is arguable that
reporting it six months after your clients’ receipt of this money would not be considered ‘as
16
Conduct Rules (n1) r 9.2.1
17
Nickolas James and Rachael Field, ‘The New Lawyer’, (Wiley, 2013) (The New Lawyer) 424; Current regulation of litigation funders and
lawyers’ Victoria Law Reform Commission, (Paper, 9 October 2020) 3.17-3.35, <https://www.lawreform.vic.gov.au/content/3-current-
regulation-litigation-funders-and-lawyers#footnote-21299-85>
18
19
Ibid r 9.2.6
20
Conduct Rules (n1) - Glossary (f), (Glossary)22
21
Ibid r 12.1
22
Conduct Rules (n1) r 6.1
23
24
Ibid
25
3
Ph: 3277 9494
soon as reasonably possible’ – as set out in the agreement - particularly as in this time frame,
two case progress reports should have been submitted as a condition of undertakings.
As set out in Council of the Law Society of New South Wales v Konstantinidis [2019]26,
solicitor may be found to be guilty of misconduct 27 if they do not fully comply with
undertakings or account for any monies or settlement amounts 28. Giving consideration to the
Atanaskovic case, solicitors must carry out signed funding agreements as fiduciary duty
undertakings pursuant to r 6.1.
Talbot has also signed a funding agreement 29– which is likely to include a privacy waiver,
giving authorisation for Justice Now to be provided with information pertaining to the matter
as a condition of funding. It would then be improbable that you would be able to rely upon r
9.130 for any exemption for providing the progress reports to maintain client confidentiality,
particularly with respect to r 9.1.2, as it is arguable that Justice Now may fall under an
‘associated entity’ for the purpose of delivering or administrating legal services in relation to
the client’31. Reinforcing this would be r 9.2.1 which permits disclosure to a third party if the
client provides authorisation,32 such as the funding agreement that Talbot signed, as well as r
9.2.6 33which sets out that disclosing confidential information is permitted by to solicitor to
an insurer or an associated entity34.
The fact that you did not provide the details of the payment from WorkCover to Talbot for six
months may give rise to a possible concern for Justice Now to assume that there might have
been a conflict of interest between you, and the client Talbot. Acting for your client under a
conditional no-win no-fee pay 35 structure, it could be seen that you may have been trying to
attain any successful settlement, irrespective if this is in your clients best interests or not, so
that you can secure payment of legal fees as well as success fee, if applicable36. The delay in
26
Council of the Law Society of New South Wales v Konstantinidis [2019] NSWCATOD 104 (‘Konstantinidis case’)
27
Ibid [1]
28
Ibid [2,3]
29
‘Current regulation of litigation funders and lawyers’ Victoria Law Reform Commission, (Paper, 9 October 2020) (Current regulation of
litigation funders and lawyers) 3.17-3.35, <https://www.lawreform.vic.gov.au/content/3-current-regulation-litigation-funders-and-
lawyers#footnote-21299-85>
30
31
Conduct Rules (n1) 9.1.2.
32
Conduct Rules (n29).
33
Conduct Rules (n1) r 9.2.6.
34
Conduct Rules (n20) – ‘Glossary’ (f), 22.
35
The New Lawyer (n3) 423.
36
Ibid 424.
4
Ph: 3277 9494
passing on the financial information may red-flag this as a potential conflict of

interest,37which could arouse suspicion from Justice Now to speculate whether or not you
sought the best possible outcome for Talbot, or rather, if you simply settled to attain a
‘successful’ result38.
It is arguable that because of your delay in fulfilling your undertakings – of the tri-monthly
reporting as a contracted duty to your client, that you would likely be in breach of solicitors
conduct rules, and found to be in misconduct, as was the case in both the Atanaskovic39 and
Konstantinidis40 cases. It is highly contentious as to whether or not there is a conflict of
interest present in your delaying of informing Justice now. Unless you are able to provide
reasonable explanation as to why there was such a significant delay in fulfilling this
undertaking it is likely that Justice Now will allege that there was a conflict of interest, and
that you were not honouring your fiduciary duty to your client41.
Advice in Relation to Client Alice

Potential Breach of Duty to the Court and the Administration of Justice42
The issue here is whether there has been a breach of the ethical obligations set out in the
solicitors Conduct rules43 by knowingly passing off an informal and invalid, un-witnessed
Will as a ‘formal and duly executed’ and valid document to an officer of the court, while the
matter was being contested in the Supreme Court.44
Of most specific relevance to these circumstances, is r 22.1, which prohibits solicitors to

knowingly make false statements to an opponent in relation to the case45, and r 19.1; to not
deceive or knowingly mislead the court.46
37
38
Current regulation of litigation funders and lawyers (n28); The New Lawyer (n3) 424.
39
Atanaskovic case (n14).
40
Konstantinidis case (n25).
41
Atanaskovic case (n14) [39].
42
Conduct Rules (n1)
43
Ibid
44
Council of The Law Society of New South Wales V Renfrew [2019] Nswcatod 63 (‘Renfrew’) [At 2]
45
46
Ibid r 19.1
5
Ph: 3277 9494
In terms of fundamental requirements, as an Australian legal practitioner, you owe paramount

ethical duty in r 3.1 is to the Court and the administration of justice 47– which prevails all
other duties48. Rule 4.1.2 instructs solicitors’ to be honest in dealings in the course of legal
practice, 49 while r 4.1.4 directs solicitors to avoid any compromise to integrity and to act with
professional independence50. Rule 5 prohibits solicitors to engage in conduct that
demonstrates that a solicitor is not a fit and proper person for practice, 51or as in r 5.1.2,
‘brings the profession into disrepute’52. It is stipulated in r 8.1, that a solicitor must only
follow ‘lawful’ instructions.53
In Council of the Law Society of New South Wales v Renfrew [2019] NSWCATOD 63, it was
found a solicitor knowingly included a falsely endorsed a Will in her materials, and provided
false statements about the validity of the Will to officers of the court - leading to documents
to be filed to the court in determining an outcome, ultimately mislead the Court. 54 These
actions were found to be misconduct55 as she failed in her professional duties 56 by attempting
to mislead the court. 57
When you followed the unlawful instruction of Alice to provide a copy of Jim’s unendorsed
Will – which had not been properly executed as required by law - to the acting solicitor for
the other party, Brett – while having full knowledge that is was an informal document, it is
likely that you are in breach of r 8.1 – to follow only lawful client instruction58. It is also
likely to be a breach of r 22.1 which prohibits solicitors from making false or misleading
statements to their opponents – as you knowingly lied to Brett.59 These matters are further
compounded by your email reference to these documents as ‘ his formal and duly executed
Will’ – whilst having full knowledge that the signature of the deceased was not witnessed and
therefore not formally executed. A flow-on effect of these deceptive statements was that the
47
48
Ibid.
49
Ibid r 4.1.2
50
Ibid r 4.1.4
51
52
Renfrew (n44) [87]
53
54
Renfrew (n44) [34]
55
Ibid [5]
56
Ibid [4]
57
Ibid [8]
58
59
6
Ph: 3277 9494
matter was resolved with the anticipated outcome you had intended; that your opponent Brett
filed to withdraw the contest to the Will. It is highly probable this conduct would be in breach
of r 19.1, because as a direct result of your untrue statements, you have knowingly misled the
court, and henceforth the application to the Victorian Supreme Court was withdrawn,60
thwarting the proper administration of justice.61
Such actions could not be in keeping with r 3.1 as being untruthful has perverted the natural
course of the Supreme Court matter62, as the challenge from the siblings to investigate the
validity of the Will was averted by dishonest means, likely breaching r 4.12.63 This has
significant potential to be seen as a compromise of your integrity as a legal professional,
which is prohibited in r 4.1464, and it is likely that you run the risk of being found not fit and
proper to for practice, set out in r 5.165, as was found in the Renfrew case66. Such failings in
professional duties67 from a legal practitioner bring the profession into disrepute.68
Advice in Relation to Client Leo

Potential Breach of Duty to the Legal profession
The potential issue is whether there has been a breach of ethical obligations69 set out in the
solicitors conduct rules by suggesting to opposing counsel, Davey, via email, that you would
telephone the Legal Services Commission (‘LSA’) if he was not able to get his client to pay
your client, Leo.
Rule 21.4 states that a solicitor must not allege serious misconduct against a person unless
there are reasonable grounds70. 4.1.2 of the solicitors conduct rules imposes the obligation for
solicitors to be courteous in all dealings during the course of legal practice71, and further in r
60
61
Conduct Rules (n1)
62
Ibid
63
64
Ibid r 4.14
65
66
Renfrew (n44) [4]
67
Ibid
68
Ibid [87]
69
Conduct Rules (n1)
70
Ibid r 21.4
71
Ibid r 4.1.2
7
Ph: 3277 9494
5.1.1 that solicitors are prohibited from diminishing public confidence or the administration
of justice. 72
As set out in Lander V Council Of The Law Society Of The Australian Capital
Territory (2009) 168 ACTR 32 (‘Lander’), it is professional misconduct to abuse or declare
defamatory or unfounded accusation – without reasonable basis “particularly if done
gratuitously for collateral purpose” 73 and that honestly, fairness and courtesy should be
fixtures of interactions with other solicitors in order to maintain integrity of the legal
profession, avoiding provocative and offensive language or conduct.74
It is noted that fair comment that has truthful basis are not grounds for professional
misconduct, but rather misconduct would occur in their absence.75
With regard to your dealings in the contractual dispute matter of your client Leo; it may be
argued that when you sent the email to your opponent Davey, in seeking resolution to the
dispute, requesting payment for what your client believes to be owed to her, that the
statement; -
‘If you would just get your client to pay my client what she is owed, I may not have to
pick up the phone and call the Legal Services Commissioner.’
may be construed as an unreasonable and coercive threat to induce your opponent to agree to
settle the dispute and pay your client Leo. Such conduct is subject to disciplinary action. If
this is the case, then is it likely, as in the Lander case, that you would be found to be in breach
of your ethical obligations76, finding you liable for professional misconduct under r 21.4.77
However, it is crutial to ascertain more information from you, as to exactly how your
opponent was being ‘unnecessarily difficult in blocking…successful settlement’. If this indeed
legitimately the case, as explored in (iv) in the Lander case78, it may be fair comment and
reasonable notice to opponent to have fair dealings with you in the course of this matter.
72
Ibid r 5.1.1
73
Lander V Council of The Law Society of The Australian Capital Territory (2009) 168 ACTR 32 (‘Lander’) (i)
74
Ibid [14]
75
Ibid (iv)
76
Lander (n73) (iv)
77
78
Lander (n73)
8
Ph: 3277 9494
Pursuant to r 21.4.279 , I would like to arrange a follow up meeting with you, to discuss what
you believe are valid grounds for your complaint to LSA, and to advise you of the seriousness
and possible consequences of making false allegations.
For further information in relation to the details of this correspondence, please call our
office to arrange a suitable time to discuss in depth.
Sincerely
Shakira Jones
Solicitor
On Behalf of
Ethical Lawyers & Co.
79
9
Ph: 3277 9494

Letter of Advice 113

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Letter of Advice 113

Uploaded by

Copyright:

Available Formats

Ethical Lawyers & Co.

Letter of Advice SID:219577629

File No: 366 6933

Legal Advice Regarding Potential Breaches of Ethical Obligations.

Advice in Relation to Talbot

passing on the financial information may red-flag this as a potential conflict of

Advice in Relation to Client Alice

Of most specific relevance to these circumstances, is r 22.1, which prohibits solicitors to

In terms of fundamental requirements, as an Australian legal practitioner, you owe paramount

Advice in Relation to Client Leo

You might also like