The firm became involved in one of a number of civil proceedings that broke out between the Pless family, which Mr Tang described as “much like the Oblonsky family” – the fictional family in Anna Karenina – in that “the family has been an unhappy family”.

At the centre of the dispute was a Supreme Court of Victoria proceeding initiated by Peter Pless – acting as executor of his late mother’s estate – to prevent his father, Roland Pless, from disposing of assets pending the outcome of substantive proceedings.

The judge was unable to make substantive orders and instead adjourned the matter so further information could be obtained.

Representing Roland, Keogh & Co then underwent “significant work” to prepare an affidavit and a defence to Peter’s proceedings.

After the judge made freezing orders on Peter’s behalf – albeit on a narrower scope – Roland became unhappy with the firm’s handling of Peter’s proceeding and formally initiated a claim in October 2018.

After Roland’s death, Peter prosecuted in an executorial capacity.

At the heart of the complaint was a proposed undertaking Roland entered to not “dispose, encumber or otherwise deal with” a home that had been purchased by his late wife for Peter.

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It was never presented to the court or otherwise dealt with.

Peter alleged the firm breached its retainer by failing to comply with Roland’s instructions to provide the proposed undertaking to Peter’s lawyers, failing to advise Roland as to the costs and his prospects in the proceedings, and failing to advise him of alternative avenues.

While there was evidence Roland was not entirely certain about how the proposed undertaking was to be deployed, Mr Tang considered Roland knew enough to sign and provide conditional instructions.

Mr Tang also did not consider the firm was under any obligation to clarify their instructions or provide further advice on the risks and benefits of alternative strategies prior to the first hearing day.

The senior member added it was “improbable” that Roland would have provided instructions that the proposed undertaking should be offered to Peter, and so the primary claim was dismissed.

However, Mr Tang did accept things changed between the first hearing date and the second after the adjournment. He said this was because the judge indicated he was “currently minded to think there is a prima facie case” or “serious questions to be tried”.

“In my view, it would have been obvious to any reasonably competent solicitor that it was highly likely that the judge would make a freezing order on the return date,” Mr Tang said.

Mr Tang said there would have been time after the adjournment to seek Peter’s agreement to consent to orders “along the lines” of the proposed undertaking rather than the court’s freezing orders.

“In my opinion, a reasonably competent solicitor would have revisited this matter with Roland following the first court hearing and advised him as to the prospects that following this path might save him the costs of a contested hearing on the return date and at least some of the costs associated with preparing the affidavit,” Mr Tang said.

Keogh & Co relied on the “so-called advocates immunity”, which prevents barristers and solicitors from being sued for work done in court or work done outside court that is “fundamentally connected” with work done inside the court.

The firm contended this was a complete defence to the claims.

However, Mr Tang determined: “Just as advice out of court is not subject to immunity, I consider the immunity does not extend to the failure to properly advise as to the settlement out of court.”

Editor' note: A previous version of this article incorrectly stated the firm was based in Queensland. This has been updated.