The Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (ASCR) outline the ethical and professional standards that solicitors in New South Wales must follow. Drafted under the Legal Profession Uniform Law, these rules regulate various aspects of legal practice, including duties to the court, clients, and fellow legal practitioners. Their aim is to uphold the integrity of the legal profession and ensure the proper administration of justice.
The rules governing this area come from the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 and the general law powers of the courts. Under Rule 27, a solicitor likely to be called as a material witness in contested proceedings should not appear as the client’s advocate and may, in some circumstances, withdraw entirely if their continued involvement risks prejudicing the administration of justice.
Solicitors as Witnesses: Rule 27
Rule 27, a cornerstone of legal ethics, governs the circumstances in which a solicitor must not continue to act in a matter where they—or someone closely connected to their firm—are likely to become a material witness in the client’s case. In avoiding conflicts between a solicitor’s role as advocate and their potential role as a witness, the rule protects the integrity of legal proceedings.
Key Principles of Rule 27
1. Material Witness:
Suppose it is known or apparent that the solicitor (or their associate or law practice) will need to give evidence on contested issues. In that case, they may be considered a material witness.
2. Prohibition on Advocacy:
A solicitor who is a material witness must not appear as an advocate in the matter, preventing them from combining the roles of witness and representative, which could undermine the fairness of the trial.
3. Requirement to Cease Acting:
If continuing to act would prejudice the administration of justice—such as by impairing objectivity, creating a perception of bias, or confusing the roles of lawyer and witness—the solicitor must withdraw from acting in the matter.
Purpose
Rule 27 ensures that solicitors maintain professional independence and objectivity and that their involvement as witnesses does not compromise the fairness or perceived fairness of the proceedings. It aims to avoid situations where a solicitor’s credibility as a witness might improperly influence the Court or their involvement might otherwise damage the due administration of justice.
In Kallinicos v Hunt [2005] NSWSC 1181 (64 NSWLR 561), Brereton J (as he then was) considered whether a solicitor should refrain from acting in proceedings due to a potential conflict of interest and the appearance of bias and affirmed that courts have inherent jurisdiction to restrain a solicitor from acting where their continued involvement would risk undermining public confidence in the administration of justice.
Importantly, this is not a blanket ban. The question is whether justice—including its appearance—would be undermined if the solicitor continues to act. In Kallinicos v Hunt [2005] NSWSC 1181, where Brereton J stated the test focuses on whether a
“fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting”, at [76],
to protect the integrity and appearance of justice.
Kallinicos v Hunt emphasised that the jurisdiction is exceptional and requires the utmost caution when exercised, ensuring the highest standards of legal practice and fairness. The appearance of compromised impartiality can be sufficient grounds for restraint, even without proof of actual conflict.
Courts must delicately balance this with the public interest in a party’s representation by its chosen solicitor, navigating the complex terrain of legal ethics and public perception.
Brereton J’s reasoning in Kallinicos v Hunt continues to be the leading authority in NSW on restraint applications involving solicitors acting where they may also be witnesses or have a close personal interest in the outcome. Courts exercise this jurisdiction sparingly but will act when independence, impartiality, or the public’s confidence in the process is at stake. Recently, Hallen J restrained a solicitor from acting in Wild v Meduri [2023] NSWSC 113, a probate case where they also witnessed the disputed Will.
Legal ethics and the broader public interest drive the principle that
“Justice must not only be done, but must also be seen to be done”.
Legal Background: The Tabain Estate Dispute and the Solicitor Restraint Motion
Following James Peter Thomas Tabain’s death in April 2024, his multimillion-dollar estate has become the subject of an increasingly complex and high-stakes legal dispute between his wife, Sandra, and their three children—Matthew, Mark, and Jon. With over $44 million at stake and multiple wills in contention, the matter is scheduled for a 10-day final hearing before Hammerschlag CJ in Equity in October 2025.
One of the central issues before the court is whether the solicitor acting for the estate, Julianna Kneebone (Second respondent to the motion), and her firm, Kneebone & Associates Solicitors (Third respondent to the motion), should cease to represent Matthew James Peter Tabain (First respondent to the motion). Following a lengthy procedural history, including contested crossclaims, a failed mediation, and earlier attempts to restrain the Second respondent, were dismissed by the Court without prejudice.
At the heart of the current application is that the Second respondent is a key witness to the execution of the deceased’s 2019 Will—the Will that the first respondent seeks to propound. Mark Justin Tabain ( The First applicant) and Jon Sinclair Tabain (the Second applicant) argue that this creates a conflict, as the Second respondent’s affidavits provide material evidence about the deceased’s knowledge and approval of the 2019 Will, and her involvement in the circumstances surrounding the uplift and destruction of that document. This evidence is directly relevant to allegations of undue influence and competing claims seeking to rely on a later 2021 or earlier 2015 Will.
While the Second respondent has undertaken to withdraw from direct involvement in the preparation of evidence—appointing independent counsel to take instructions and pledging to avoid involvement in matters where her evidence is material—the first and second applicant contend that these safeguards are inadequate as the second respondent’s ongoing role risks undermining the integrity of the proceedings. They have continued to press for her formal restraint.
The Estate of Tabain [2025] NSWSC 690 raises essential questions about solicitor independence, the appearance of justice, and the Court’s discretion to intervene where a legal practitioner’s dual role as both witness and advisor may compromise the fairness of the process. The expected resolution of the restraint motion is to clarify how far solicitors can go in mitigating perceived conflicts while remaining the solicitor on the record in contested probate proceedings.
The Solicitor-Witness Dilemma: the Second respondent’s Role Under Scrutiny
Following the filing of a motion to restrain the Second and Third respondents from acting for the First respondent in a major probate dispute, the Second respondent provided an affidavit on 1 April 2025 addressing her ongoing role in the proceedings. The Second respondent acknowledged that it would be inappropriate for her to manage the preparation of the plaintiff’s evidence personally, providing an undertaking to have no substantive involvement in that aspect of the case, limiting her role to logistical or administrative support. Briefing Counsel to draft affidavit’s and prepare evidence
Rule 6.1 of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 (Conduct Rules) states that a solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure its timely and effective fulfilment, unless released by the recipient or a court of competent jurisdiction.
Not following an undertaking can lead to a range of consequences. Breaching an undertaking or failing to meet an undertaking to a Court may amount to contempt, unsatisfactory professional conduct, or professional misconduct under the Legal Profession Uniform Law (NSW).
Despite these steps, the applicants, argue that the Second respondent’s proximity to key facts and potential role as a material witness compromise her ability to act impartially and risk undermining the appearance of justice. They base their restraint motion not on conflicts of interest or misuse of confidential information, but on the public interest jurisdiction recognised in Kallinicos v Hunt, allowing the Court to intervene where a solicitor’s ongoing involvement could erode confidence in the administration of justice.
The issue is whether the Second respondent’s distancing measures—her undertaking not to be involved in evidence preparation and her delegation to multiple counsel—adequately mitigate the risk. The Court should consider whether a fair-minded observer might conclude that her continued involvement would jeopardise the court process’s integrity or appearance.
Several factors intensify this concern. The Second respondent’s evidence will be central to disputed factual issues, particularly the making and alleged revocation of the deceased’s 2019 Will. There may be cross-examination of the Second respondent on the quality of her professional conduct, her interactions with key family members, and her role in drafting and supervising Will instructions. The provision of extensive narrative commentary on the deceased’s cognitive decline over several years and file notes that directly bolster her client’s case are likely to become critical in assessing the credibility of both her and other witnesses.
The question is not whether the Second respondent acted with improper intent, but whether her dual role as solicitor and potential witness raises reasonable doubts about impartiality. The Court must weigh her remedial actions against the extent of her evidentiary involvement and whether her credibility is too entangled with her clients to preserve public confidence in a fair trial.
Restraining the Second respondent from Acting
The Court’s decision to restrain the Second and Third respondents from continuing to act for the First Respondent in contested probate proceedings illustrates the importance of maintaining both the reality and appearance of justice in legal practice—particularly where a solicitor becomes a key witness.
The Interconnectedness of Evidence and Credibility
A central concern was the Second respondent’s evidence, which supported the First respondent’s claims about the deceased’s declining mental capacity and the brothers’ alleged bias. The Second respondent’s file notes recorded statements by the First respondent and his wife, Catherine, that, if accepted, would enhance the credibility of their case. But because the Second respondent offers these notes, their weight depends on her credibility—intertwining her reliability with the outcome of the litigation. The Court concluded that this blurred the line between advocate and witness to a degree that compromised professional independence and the appearance of impartial justice.
Risk to Objectivity and Role Confusion
The Second respondent is likely to face cross-examination concerning the extent of the file notes in her affidavits, which cover conversations and observations between 2019 and 2021, and whether their drafting was influenced by knowledge of other witnesses’ evidence, particularly the first respondent’s wife’s affidavit. If the Second respondent could be in breach of professional conduct rules, particularly Rule 25, designed to protect the integrity of witness evidence by prohibiting solicitors from conferring with more than one lay witness at the same time about issues likely to be contentious at a hearing, where such discussion could influence the witnesses’ evidence.
An exception applies where the solicitor believes circumstances justify such a joint conference. However, Rule 25.2 allows joint discussions with multiple clients about procedural matters not considered to undermine evidentiary integrity — including court undertakings, factual admissions, amendments to pleadings, or settlement negotiations. The rule reflects the broader duty to maintain fairness in litigation and avoid the perception or risk of evidence being shaped or coordinated. Though the Court did not make a firm finding that the Second respondent accessed others’ affidavits, the risk of such a perception alone undermined public confidence in the trial’s integrity.
In Geelong School Supplies Pty Ltd v Dean [2006] FCA 1404, Young J restrained a solicitor from continuing to act in litigation due to their likelihood as a material witness and conflicting duties. The solicitor had acted for one side of a deadlocked joint venture (the Porchs) concerning a disputed company meeting that resolved—without the presence of the other joint venturer (the Deans)—to commence proceedings against them. The solicitor was directly involved in that meeting and its procedural irregularities, making it likely they would need to give evidence on contested issues.
Young J found that the solicitor could not act objectively for the company—whose interests included both joint venturers—and had blurred the lines between acting for the Porchs and the company. He concluded that a fair-minded observer would view the solicitor’s continued involvement as undermining the administration of justice. This case illustrates that solicitors must not continue acting where they, or their firm, are likely to become material witnesses on contentious matters, or continuing would compromise their independence and impartiality.
Tone of Correspondence and Aggressive Advocacy
The Court also noted that the Second respondent’s correspondence reflected a tone that suggested alignment with her client’s hostilities. However, this alone would not justify a restraint, supporting the broader concern about her impartiality, mainly when opposing counsel could use her written communications at trial to show potential bias.
Disruption Risks and Logistical Fragility
As a sole practitioner, the Second respondent’s ongoing involvement presented further risks. If, during the trial, she admits under cross-examination that she knew key affidavits, the restraint application might be re-run mid-hearing, potentially resulting in delay or adjournment. The Court found this disruption foreseeable and avoidable. The Second respondent’s lack of legally qualified support staff meant she would face difficulty conducting a complex 10-day trial without breaching her professional duties unless she gave evidence first and entirely delegated witness preparation—something the Court saw as impractical.
Excessive Costs and Inefficiency
The Court also flagged the escalating cost of the Second respondent’s continued role. For example, preparing her affidavit on 5 March 2025 cost over $45,000 in fees. The need to quarantine her from involvement with other witnesses added inefficiency and financial strain, especially if she sought cost recovery from opposing parties.
Undertakings Were Not Enough
While the Second respondent gave undertakings to distance herself from evidence preparation, the Court found this solution unworkable in the dynamic setting of a trial. It could not ensure that the parties would not breach Rule 25 or that the trial would continue without complications requiring further intervention, as well as the ethical concerns of her continued involvement and uncertainty about how the Second respondent would manage the hearing.
Cost of replacement: While significant, changing lawyers did not outweigh the risks and inefficiencies of supporting the current arrangement, especially since the parties had forshadowed the restraint motion since November 2024.
Matthew’s Objections and the Court’s Response
The Court heard three main arguments in opposition to the restraint:
1. Disruption to preparation: While the change might delay the first respondent’s preparations, the trial was over three months away—enough time to engage new representation.
2. Loss of lawyer of choice: The Court acknowledged the seriousness of this concern, noting that when a case and the solicitor’s credibility are intertwined, objectivity is more critical than personal preference.
3. Scope of the restraint: The Court tailored the restraining order to prevent the Second respondent from acting in probate matters, thereby avoiding unnecessary harm. She may continue to act in related but separate proceedings —such as a potential derivative action or third crossclaim concerning crop proceeds—where her evidence does not intersect with contested probate issues. These matters will be dealt with separately and do not involve her as a material witness.
Conclusion and Final Orders: Restraint Granted, Costs Reserved
The Court upheld the application by the First and Second Applicant to restrain the Second a and Third respondent in the probate proceedings. The restraint will take effect from 15 July 2025, allowing the first respondent to secure alternative legal representation.
As costs usually follow the event, the First, Second and Third respondents, opposed the motion and were unsuccessful, it was likely the Court would hold them jointly and severally liable for the First and Second applicants’ costs of the restraint motion. However, the Court left open the opportunity for written submissions on this issue if any party looks to dispute the costs order.
The Court also made a key observation concerning any future costs assessment: litigation expenses incurred from November 2024 onward— are assessed; particularly those associated with quarantining the Second respondent from evidentiary preparation—may not be recoverable by the First respondent
Finally, the Court confirmed that the trial judge will now supervise all other aspects of trial preparation.
Orders Made
Restraint Order: From 15 July 2025, Second and third respondent will be restrained ‘from further acting for the First respondent concerning the probate aspects of the proceedings.
Costs Submissions: If the restrained parties contest liability for costs, they must file written submissions by Monday, 14 July 2025, with any reply to submissions from Mark and Jon due by Monday, 21 July 2025.
Default Costs Order: If no submissions are recieved, the restrained parties will be deemed liable to pay the applicants’ costs jointly and severally.
Liberty to Apply: The Court granted liberty to apply for further orders if necessary.
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