In its inherent jurisdiction, the Supreme Court can issue an order to prevent solicitors from participating in a case where a fair-minded and reasonably informed member of the public would determine that the proper functioning of justice necessitates that the solicitors be barred from involvement to maintain the integrity of the judicial process and ensure the fair administration of justice.
The Court rarely issues such an order as it is applied carefully and considered in the public interest when denying a litigant their chosen lawyer. Following the termination of a client’s retainer, no ongoing equitable or contractual duty of loyalty would justify the Court’s intervention. Nevertheless, the Court retains an inherent jurisdiction to restrain solicitors as officers of the Court and its authority to control the judicial process, ultimately aiding in the administration of justice.
In Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181, it is widely accepted that Brereton J expressed the current principles when a Court is acting in its inherent jurisdiction
“Will a fair-minded and reasonably informed member of the public accept a lawyer representing a party where his conduct is central to the proceedings?”
In Garde-Wilson v Corrs Chambers Westgarth [2007] VSC 235 Bell J ruled that Corrs Chambers Westgarth (the defendant) and the barristers they engaged could not represent the Legal Services Board in its case against Ms Garde-Wilson (the plaintiff) concerning the renewal of her practising certificate.
The issue arose due to the improper use of an Australian Crime Commission (ACC) examination transcript; initially protected by a publication prohibition order, the defendant faced charges of providing false evidence to the ACC, an exemption allowed to use the transcript in her committal hearings. However, the defendant and its barristers later obtained the transcript from the DPP. They sought to use it in the Victorian Civil and Administrative Tribunal (VCAT) proceedings concerning the plaintiff’s practising certificate.
The defendant’s junior lawyer collected the file from the DPP without informing superiors of the publication restriction. Once the ACC discovered the breach, they demanded the immediate return of the transcript, which the defendant complied with. However, Bell J held that the defendant had already done the damage.
The plaintiff applied to have the defendant and barristers removed from the case, arguing that their access to the confidential material created a risk of misuse.
Bell J agreed with the plaintiff’s application to remove the defendant and barristers from the case, arguing that their access to the confidential material created a risk of misuse and that allowing them to continue representing the Board would undermine the integrity of the judicial process. Bell J emphasised that the defendant possessed confidential information about the plaintiff that its client did not, creating an untenable position and a risk of subconscious misuse.
Bell J rejected the defendant’s proposal that only the lawyers involved would use the transcript without sharing its contents. Finding this impractical, his Honour concluded that fairness and the proper administration of justice required an injunction to prevent the defendant and the barristers from continuing to act.
In exercising the Court’s jurisdiction to restrain officers of the Court from acting, Bell J emphasised the crucial role of the Court in ensuring that justice is not only done but is also seen to be done, underscoring the importance of solicitors appearing before the Court to be observably independent, a key factor in maintaining the integrity of the judicial process.
In two recent decisions, Hallen J reinforced solicitors’ duty to take particular care when assessing testamentary capacity, especially when doubts arise. He cited Loosley v Powell [2018] NZCA 3; [2018] 2 NZLR 618, where the New Zealand Court of Appeal outlined factors affecting the weight of a solicitor’s evidence, including their experience, training, familiarity with the will-maker, and the quality of their assessment.
Ultimately, the solicitor who prepared the deceased’s Will was prevented from acting as they had a personal stake in the outcome beyond recovering legal fees. His role in the case would require defending his conduct and engaging his personal and reputational interests, as seen in Mitchell v Burrell (2008) NSWSC 772.
In Mitchell v Burrell[2008] NSWSC 772, [20] (‘Mitchell’), Brereton J viewed the regulation as reinforcing the overall responsibility to prevent conflicts of interest (refer to Rule 12). The regulation restricted the concept of materiality to situations where the solicitor has a personal stake.
“I do not agree that in every instance where a solicitor represents a party and is also a significant witness, the Court will prohibit the solicitor from proceeding with the case. … [T]he boundary is crossed only when the solicitor…” has a personal stake in the outcome of the proceedings or their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. Such circumstances will strongly indicate that the interests of justice – which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their interests – require the lawyer to be restrained from continuing to act.”
In Mitchell, Brereton J noted that the mere circumstance that a solicitor will be a material witness, even on a controversial matter, does not necessarily justify restraining the solicitor from continuing to act. In Scallan v Scallan [2001] NSWSC 1078, Windeyer J noted that it is not unusual for instructing solicitors in contested probate matters to give evidence of facts relevant to instructions for and execution of a will. Similarly, in contested conveyancing issues, it is not unusual for solicitors who have acted in the conveyance to continue to act in proceedings for specific performance, recession or termination and give evidence in those proceedings.
The assessment entails evaluating whether a reasonable and well-informed member of the public would determine that restricting a legal practitioner from serving to uphold the proper administration of justice is crucial, considered exceptional, and should be approached cautiously. This evaluation involves factors concerning the integrity of the judicial process and the perception of justice, including unfairly denying a litigant the right to their preferred lawyer.
Background
Angelo Giaimo (the deceased) passed away in April 2024, leaving behind three sons who are the parties to the matter. His second-last Will, made in May 2000, appointed his sons as co-executors and divided his estate into equal shares. In May 2024, Vincenzo Giaimo (“the plaintiff”) applied for a grant of probate as the sole executor named in the deceased’s final Will, which the deceased executed on 26 April 2023 (“final will”).
Vito and Joseph Giaimo (“the defendants”) lodged a caveat with the Registrar of Probates and objected to the plaintiff’s probate application. Their primary objection is that the deceased lacked testamentary capacity in the period leading up to and at the time of executing the final Will.
Giulio Marra, a solicitor, drafted and witnessed the final Will and represented the plaintiff. Marra is the principal solicitor and sole director of SGM Legal Pty Ltd (“SGM Legal”), the firm representing the plaintiff in the matter. Paul Webster, the defendants’ solicitor, first raised objections to Marra and SGM Legal acting for the plaintiff in a letter dated 10 October 2024, requesting that Marra cease acting due to a potential conflict of interest, as he would likely need to give evidence concerning the deceased’s testamentary capacity.
Around 29 October 2024, Marra transferred responsibility for the case to Nicholas Raso, another solicitor from SGM Legal. However, the defendants argue that this transfer does not resolve the conflict and have applied for an order restraining SGM Legal from representing the plaintiff in the proceeding.
In affidavits filed in this application, Raso stated that:
(a) Marra informed him that his last conversation with the plaintiff was on 29 October 2024 to confirm the transfer of conduct of the case;
(b) Access to the plaintiff’s electronic file at SGM Legal has been restricted so that only Raso can access it;
(c) Since taking over the case, Raso has only discussed matters related to this application to restrain SGM Legal with Marra and
(d) Since 29 October 2024, all discussions with the plaintiff regarding the case have been handled by Raso, and moving forward, they will be conducted either by him or counsel.
In an affidavit, Vito stated that the plaintiff was estranged from the family from 2015 until 2019, after which tensions with the deceased persisted. Since 2015, the defendants have provided significant financial and practical support to their parents and have held powers of attorney. The deceased, who spoke a difficult Italian dialect with limited English proficiency, moved into aged care in 2021. By mid-2022, he showed signs of cognitive decline, which worsened after his wife’s death. Medical records indicate that by late 2023, following a stroke, he could not manage his affairs.
The matter
In July 2024, the plaintiff applied for summary judgment, arguing that the defendant’s objections to probate lacked merit. Marra, a solicitor, stated that during a 19 April 2023 meeting, the deceased raised concerns about the defendants and instructed him to appoint the plaintiff as sole attorney and beneficiary. Mara conducted a meeting in Italian, with the plaintiff only present for clarification. Marra assessed that the deceased had testamentary capacity and later confirmed his instructions multiple times before executing the Will on 26 April 2023. Marra and his associate verified that the deceased understood and approved the Will.
The defendants rely on an affidavit from solicitor Ivan Benjamin, who had represented the deceased from 2000 to April 2023. In a final meeting on 14 April 2023, the plaintiff claimed that the defendants had stolen from the deceased, and the deceased wished to make a new Will favouring the plaintiff. Benjamin struggled to understand the deceased and declined to proceed without an Italian-speaking lawyer. An independent interpreter also expressed doubts about the deceased’s capacity. The plaintiff became aggressive, and Benjamin ultimately asked him to leave. Benjamin concluded that the deceased may not have understood the consequences of the plaintiff’s proposed changes to the deceased’s Will.
In Re Simpson [1977] 121 SJ 224 Templeman J’s provided a “Golden Rule”:
“…that the making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.”
The plaintiff submitted that Marra’s testimony will not be particularly contentious or heavily challenged as the defendants’ case focuses on the deceased’s alleged confusion about their management of his affairs—matters beyond Marra’s knowledge. The plaintiff asserts that Marra can only speak to his observations and assessment of the deceased’s testamentary capacity and understanding of the final Will. He also downplays the suggestion that Marra failed in his professional duties by not obtaining a medical assessment before the deceased executed the Will, arguing that this omission is not in dispute.
The decision
The Court rejected the plaintiff’s submissions, finding that the central issue was whether the deceased had testamentary capacity when he gave instructions and executed the Will. Similarly, There is no dispute that Marra will likely be a witness at trial and provide evidence concerning the deceased’s testamentary capacity; legal precedents indicate it is important to consider.
Four key factors are relevant:
- (1) the plaintiff’s involvement when the deceased provided instructions and signed the Will;
- (2) the deceased’s capacity to understand the Will at the time of execution;
- (3) Marra’s awareness of recent family disputes and the significant changes made to the Will; and
- (4) Marra’s decision not to seek a medical assessment before execution.
In Veall v Veall [2015] VSCA 122, Santamaria JA discussed the professional duties of solicitors drafting Wills, citing earlier cases that recommended obtaining medical confirmation of capacity when dealing with elderly or infirm testators. While this is not a strict rule, it is a prudent step unless impractical or unnecessary due to the testator’s apparent mental competence and an uncontroversial distribution of assets.
The defendants have already presented evidence questioning the deceased’s testamentary capacity and are likely to submit further evidence, including testimony from the deceased’s GP and aged care staff. As the plaintiff bears the burden of proving the validity of the final Will, he intends to rely heavily on Marra’s testimony affirming capacity. Given the significance of this issue, it is highly likely that the defendants will vigorously challenge Marra’s evidence.
The plaintiff argues there is no reason to restrain Raso and SGM Legal from representing him, as any potential conflict between Marra’s duty to the Court and his personal or professional interests does not extend to his firm or colleagues. The Court rejects this argument, finding that the reputational concerns extend beyond Marra to his firm, SGM Legal, which remains the plaintiff’s legal representative.
As an SGM Legal employee, Raso is also implicated, as Marra is the firm’s sole director and principal. The Court accepts the defendants’ argument that a fair-minded observer would likely see Raso as being placed in a difficult position—potentially reluctant to provide independent advice or take steps that could conflict with the interests of Marra or the firm. This would create a conflict between Raso’s duty to act impartially and the firm’s interest in avoiding reputational harm.
Makripoulias v Arhontovasilis [2022], VSC 53 dealt with an application to restrain a legal practitioner from acting in similar circumstances and restrained the solicitor who prepared the deceased’s Will from acting as they had a personal stake in the outcome beyond recovering legal fees. The solicitor’s role in the case would require defending his conduct and engaging his personal and reputational interests; Moore J referred with approval to the statement by Brereton J in Kallinicos v Hunt. (see above)
The Court acknowledges that its power to restrain solicitors from acting is exceptional and used cautiously and that litigants have a public interest in choosing their legal representatives. In this case, the integrity of the judicial process and the proper administration of justice require the prevention of SGM Legal from continuing to act.
The Court will hear from the parties on the appropriate form of the order.