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SA Breach of Law Society Solicitors Code of Conduct?

Discussion in 'Family Law Forum' started by Troubled, 20 July 2014.

  1. Troubled

    Troubled Member

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    So, here's the thing: My ex has an intervention order ( restraining order) on him with me as the protected person and point 2 of that order states that he cannot permit anyone to follow, stalk, keep me under observation et al.
    Without my ex husband's consent and knowledge (supposedly) his lawyer hired a private investigator to follow me. His lawyer has advised police that his client had no knowledge of this act, that the lawyer himself had organised this and that the reason for this was as there is a family court trial approaching.

    Police have investigated and advised me that the wording in my ex husband's affidavit, although on first glance it looks like my ex had me followed, it actually reads ... "will also subpoena Mr........ a private investigator who has had (me) under surveillance"
    When the police went to arrest my ex for a breach of the intervention restraining order, they were told it was his lawyer who had instructed the PI.
    My question: Is this a breach of the Law Society Solicitors conduct rules?
     
  2. winston wolf

    winston wolf Well-Known Member

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    What state?
     
  3. Troubled

    Troubled Member

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    S.A
     
  4. winston wolf

    winston wolf Well-Known Member

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    Here is a link to the "rules" http://www.lawsocietysa.asn.au/pdf/rules_of_professional_conduct.pdf
    Section 34.1.3 could apply but in my opinion I wouldn't devote too much time to this.

    Remember
    "The Law Society's principal mission is to represent its members and the legal profession in general."

    Perhaps others in the forum can give other views?
     
  5. Tim W

    Tim W Lawyer

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    I am a lawyer in NSW, not a South Australia,
    and I try to avoid doing family law, so factor that in
    when deciding how much notice to take of what I say,
    but...
    1. It's hard to answer without seeing the actual terms of the order
      (no, don't post them).

    2. When your husband told the police that he didn't know about the PI,
      don't assume that he was telling the truth.

    3. To my mind, it is (at least) imprudent practice for a solicitor to incur
      significant discretionary costs without the consent of the client.
      That said, sometimes, it can't be helped.
      Without more, I can't be sure if this was one of those times.

    4. I agree with @winston wolf above, and also, given item 4 above,
      suggest that Rule 35 might be in play vis a vis your ex's claim
      that he didn't authorise the PI.

    5. The solicitor would need to satisfy the court (and, in the event of a complaint, the regulator)
      that engaging the PI was a reasonable thing to do in all the circumstances,
      and not simply an act intended to confound the functioning of the AVO.
     
  6. Troubled

    Troubled Member

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    Thank you for your advice. I am discussing this with my lawyer and barrister tomorrow who intend to file a complaint to the Law Society.
     

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