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Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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My lawyer spoke to the lawyer of the opposing side, without

Customer Question

My lawyer spoke to the lawyer of the opposing side, without my knowledge immediately after a hearing in the Federal court. He then claimed he could become a witness and was conflicted and resigned the next day. Was it proper for him to speak with the opposition without his client present and was it proper to allow himself to become conflicted thereby wasting about $50,000 in fees?
JA: Since laws vary from place to place, what state is this in?
Customer: NSW
JA: Has anything been filed or reported?
Customer: no
JA: Anything else you want the lawyer to know before I connect you?
Customer: no
Submitted: 23 days ago.
Category: Australia Law
Expert:  Leon replied 23 days ago.

My name is ***** ***** I am a NSW Solicitor. I will do my best to assist you with your question.

Expert:  Leon replied 23 days ago.

Good Evening.

Yes we all speak to the other side without our clients present. The question is what did he discuss with them and did he disclose anything that could have prejudiced his clients case.

Why would he need to be a witness?

Customer: replied 23 days ago.
The lawyer asked me about a payment made to a Liquidator and if I had asked for its return. I do not know what he asked the lawyer from the opposing party because I was not there.
Expert:  Leon replied 23 days ago.

Good Evening.

You have a right to ask him what was said.

Customer: replied 23 days ago.
He would not tell me. He said he would and place it in an affidavit but resigned instead.
Expert:  Leon replied 23 days ago.

You have to arrange to get your file from him,

You will have to pay him for his work. Also get another family law lawyer to take over and advise if they see any negligence on his part.

When is the matter listed for a hearing?

Customer: replied 23 days ago.
The question is it improper to cause oneself to be conficted. If he did it on purpose it cannot be proper, if he did it accidentally then he was negligent. The matter was listed in the Federal court - to appoint a Liquidator where the original failed to act. The Liquidator was appointed but the lawyer resigned.
Customer: replied 23 days ago.
As far as I knew the barrister was speaking in the court and all the layer had to do is shut up.
Expert:  Leon replied 23 days ago.

Good Evening.

It is not that simple. It all depends on the situation.

If it was done on purpose then you may have a negligence claim.

No the lawyer instructs the barrister in court.

you need to get the file and see what it in it

Customer: replied 23 days ago.
The matter was listed Aug 2015
Expert:  Leon replied 23 days ago.

I assume it is still going on?

Or did this happen last year?

Customer: replied 23 days ago.
I am writing to the legal services commissioner, but he is asks "why were the conversations improper"?
Expert:  Leon replied 23 days ago.

You need to get the file from the solicitor and see what is in it.

You cannot complain without it. It is too difficult.

Customer: replied 23 days ago.
If I do not know what he said, I can only assume he either said something on purpose on accidentally, but that the result was the same. The solicitor returned 27 boxes of files but no information regarding what he said.
Expert:  Leon replied 23 days ago.

Have you had another solicitor look at the files?

You cannot find the issues in the file. But another solicitor that practices in the area can.

Customer: replied 23 days ago.
The conversation is not on file.
Expert:  Leon replied 23 days ago.

I understand that but there may be something else that can point to that conversation.

Customer: replied 23 days ago.
I can ask that the Legal Commissioner compel him to disclose it.
Customer: replied 23 days ago.
I have to go now.
What I need to know is what sort of conversation can a lawyer not have with the opposition.
Expert:  Leon replied 23 days ago.

You can advise the commissioner of your concerns and they will ask him to reply.

The commissioner has got powers and if they believe that he may have breached his duty to you they can prosecute him.

If he has not kept a file note this could be a breach of his duty.

If he is going to do an affidavit you can cross examine him on it in court.

The affidavit would disclose what happened.

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