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  • Recent changes to the Legal Profession Uniform Solicitors’ Conduct Rules 2015 removed solicitors’ discretion to not act in cases in which they may be called to give evidence.
  • Case law shows this poses a particular challenge to probate solicitors who can easily develop a conflict of interest or prejudice the administration of justice.
  • With elder abuse rising and confidence in legal institutions waning, solicitors need to be prepared to choose not to act.

When dealing with probate cases in the NSW Supreme Court, the amendments to rule 27.2 of the Legal Profession Uniform Solicitors’ Conduct Rules 2015 (‘Rules’) are pivotal for solicitors determining whether they should act in proceedings. A solicitor who prepared a will must not act if it would prejudice the administration of justice, as they are required to give material evidence. It is difficult to consider a circumstance where the administration of justice would not be prejudiced by a solicitor who prepared a will, and then provided material evidence as to capacity and the circumstances of the will’s execution in a probate challenge.

The new rule – 27.2

Prior to 1 April 2022, rule 27.2 of the Rules stated:

‘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 may act or continue to act for the client unless doing so would prejudice the administration of justice.’

The amendments that came into effect on 1 April 2022 mean that rule 27.2 now reads:

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