27. Solicitor as material witness in client's case

    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.
    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.

Commentary

27.1 Advocate in court cannot also be material witness

A solicitor who is to give material evidence may not appear as advocate for the client in the hearing for the client. The question is what is 'material'. In Mitchell v Burrell [2008] NSWSC 772, [20] ('Mitchell'), Brereton J saw the rule as one supporting the general duty to avoid a conflict of interest (see Rule 12), and limited the materiality to one where the solicitor has a personal interest:

"I do not accept that in every case where a solicitor acting for a party is a material witness even on a controversial matter, the Court will restrain the solicitor from continuing to act. … [T]he line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in 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. The presence of such circumstances will be a strong indication that the interests of justice – which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests – require the lawyer to be restrained from continuing to act."

In Mitchell, Justice Brereton noted that the mere circumstance that a solicitor will be a material witness, even on a controversial matter, of itself does not necessarily justify restraining the solicitor from continuing to act. Windeyer J in Scallan v Scallan [2001] NSWSC 1078, [11] pointed out 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 matters, it is not unusual for solicitors who have acted in the conveyance, to continue to act in proceedings for specific performance, recession or termination to give evidence in those proceedings.

Apparent that solicitor will give evidence. That realisation may come well before any hearing. Solicitors who witness enduring powers of attorney and also represent the principal must consider the likelihood of their giving evidence in relation to the execution of the document: see Re MV [2005] QGAAT 46. That case's warning is to avoid conflicts between the duty to the client and duty to the court.

General principle: It is generally ‘unwise’ for a solicitor to continue to act in a client's case if it is known or becomes apparent that they will be called as a material witness: Chapman v Rogers; ex parte Chapman [1984] 1 Qd R 542, 545.

The Rule applies to 'material' issues: matters in which the solicitor is to give evidence on uncontested issues or matters of formality will not normally be considered 'material' for the purposes of the Rule.

27.2 Solicitor can act if no prejudice to justice

Though the Rule against appearing is clear-cut, the Rule against the solicitor or an associate acting generally for the client depends on whether it would prejudice the administration of justice. Rule 27 reflects the common law principle that it is 'unwise' for a solicitor to continue to act, particularly where that can be 'reasonably avoided': Jeffery v Associated National Insurance Co Ltd [1984] 1 Qd R 238, 245 ('Jeffery').78 An independent solicitor should take over the matter to avoid questions of objectivity: Jeffery at 245. 

Guidance on what would 'prejudice the administration of justice' is given by Kallinicos v Hunt (2005) 64 NSWLR 561. The case traversed similar considerations, specifically circumstances in which a superior court may restrain a solicitor from acting as part of its inherent supervisory jurisdiction. Though the jurisdiction should be exercised with extreme caution, the test is (Brereton J at 582-4): 

"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, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice"

78 See also: Chapman v Rogers; Ex parte Chapman [1984] 1 Qd R 542, 545 (Campbell CJ).