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Tasmanian partner restricted from proceedings following conflict concerns
A Tasmanian partner and his law firm have been restricted from acting in a partnership dispute following fears a layperson may be concerned about the proper administration of justice.
Naomi Neilson
Hobart-based firm FitzGerald and Browne Lawyers and partner Richard Griggs have been ordered to cease acting as solicitors for a married couple in proceedings for a decree to dissolve a decade-long partnership and the taking of the partnership accounts.
The applicant alleged in Tasmania’s Supreme Court that given his work with Mr Griggs during this partnership, “a fair-minded reasonably informed member of the public would conclude that the independent objectivity of Mr Griggs is compromised by conflict”.
In February 2021, after the parties agreed to refinance a home they had started to build on the property, one of the respondents asked the firm to record him as owning a 1/10,000 share in the property.
By this stage, Mr Griggs had taken control of the matter.
Around the time of the breakdown of the partnership, Mr Griggs paid funds from the trust account into the respondents’ own account.
The applicant alleged he did not give authority for this and claims he complained to Mr Griggs but was told the file had been closed in April 2021 and there was nothing that could be done.
Mr Griggs and the applicant met in March 2021 for the purpose of executing a transfer, and it was during this meeting that the applicant alleged Mr Griggs learnt confidential information that the firm could use for the respondents’ benefit in the partnership dissolution.
The applicant alleged this occurred during a “get to know you”, where legal practitioners can learn a client’s strengths and weaknesses, pressure or tension and attitude to litigation and settling cases.
However, Supreme Court Justice Stephen Holt said the applicant’s report of this meeting “gives no sufficient information” to support the allegation that Mr Griggs received any confidential information.
The applicant also took issue with the possibility that Mr Griggs could be called as a material witness and may have an “obligation of loyalty to his clients”, with an “interest in exonerating his conduct as a solicitor and a duty to the court to be frank”.
The applicant said it would also involve an “evaluation of his conduct” around the transfers and recording a respondent as share owner.
Mr Griggs’ lawyer submitted that “any complaint about Mr Griggs, although possibly relevant to a hypothetical subsequent action against the firm, is irrelevant in the present proceedings”.
Justice Holt said that while Mr Griggs’ duties to the applicant may arise “incidentally”, he rejected the argument that evidence of Mr Griggs’ professional conduct would come up during the partnership hearing.
“Mr Griggs as a partner of the legal firm will have a duty of loyalty to his clients as their legal representative, and an objective decision will need to be made as to whether he should be called by the respondents as a witness,” Justice Holt said in his written reasons.
Although Justice Holt said it is in the public interest not to deprive a party of their choice of legal representation without good cause, he did agree to order the firm and Mr Griggs to cease acting in the matter.
“I conclude that fair-minded and reasonably informed members of the public would expect that lawyers will conduct litigation free of and unaffected by the impact of personal interest such that the protection of the integrity of the judicial process requires the imposition of the restraint sought notwithstanding that restraint will deprive the respondents of the legal representation of their choice,” he found.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
