In Souraki Azad v Jose [No 2],1 the Supreme Court of Western Australia dismissed an application by the plaintiff to restrain the law practice that acted for the defendant from continuing to act.
The court was not satisfied that the law practice had received confidential information from the plaintiff that would require the firm to be precluded from acting.2 However, the making of third-party enquiries by the law practice while conflict checking, without seeking the putative client’s informed consent, was an aspect of the matter that compelled the court to make additional observations.
Background
The plaintiff’s complaint arose in circumstances where, prior to the defendant engaging the law practice, the plaintiff had first spoken with a legal practitioner at that firm to explore whether they could act on his behalf. The firm undertook a conflict checking process to assess whether they could represent the plaintiff, and had no prior relationship with either party.
During the course of the conflict checking process and without the plaintiff’s consent, the law practice contacted an external party which was a medical indemnity insurer. This contact was made because a partner at the firm had taken matters for the insurer, and, because both parties to this action were medical practitioners, the insurer was likely to have some relevant involvement in a dispute between them.
It then became apparent that the insurer would likely engage the law practice to act for the defendant in the matter, not the plaintiff. The law practice promptly informed the plaintiff that it would need to decline to take instructions from him.
Issues considered by the court
The plaintiff sought to restrain the law practice from acting for the defendant on the basis of a perceived conflict of interest.
Conflict of interest
The court considered that the nature of the phone call, being a short introductory call initiated for a conflict checking purpose, supported the conclusion that deeply sensitive information was not discussed by the participants.3 Information imparted by the plaintiff was extremely limited and did not reach the requisite level to be characterised as confidential.4
The court also recognised that the plaintiff had conveyed the substance of the same information to various other parties (10-12 other firms), either prior to the discussion or thereafter. It is relevant to note that the plaintiff was prepared to withdraw his objection to the law practice continuing to represent the defendant, provided the defendant gave his reciprocal consent to another firm acting for the plaintiff.5
No written engagement instrument was provided to the plaintiff, and the firm had not indicated consent or willingness to act for him. On this basis, the court found that the information was not confidential, and that, in the event the information was indeed confidential, it ceased to be following such disclosures.6
Third-party enquiry
The court then considered whether the external enquiries to third parties were authorised by the circumstances of the plaintiff’s enquiry. It was acknowledged that, where the putative client’s enquiry was confidential or involved the provision of confidential information to the law practice, in the absence of consent, “…a law practice will be precluded from making enquiries of third parties as part of the conflict checking process, where to do so would divulge the confidential information.”7
His Honour noted that the propriety of a third-party enquiry by a law practice without the client’s consent, in the absence of circumstances of confidentiality and of evidence that the putative client had expressly imposed a limitation against third party communications, would depend on the particular circumstances.8
No evidence was adduced by the law practice of any protective measures to ensure the risk of inadvertent disclosure of confidential information was minimised. The presence or absence of such steps would inform the question of whether a restraint was necessary. At [74], the court recognised that:
(a) “It is safe to conclude that the due administration of justice, including the appearance of justice, requires that solicitors treat conflict checking processes from members of the public with a proper degree of solemnity and importance;
(b) members of the public who are in need of legal representation are entitled to assume the information they provide to their prospective lawyers will be treated in this manner, and will not be provided to third parties beyond the law practice, unless they first give their consent to this course; and
(c) the interests of the administration of justice are not consonant with conduct which might discourage members of the public from actively seeking legal representation, perhaps out of apprehension or concern their legal affairs may be disseminated beyond the legal practitioner with whom they speak.”
If the information imparted to the law practice was confidential or the enquiry itself was confidential, protection of the client’s interests may be sought to ensure protection of that information. The possibility that such a member of the public could reach this view is of course, not sufficient. A higher standard would be required; it must be found that the relevant conclusion would be met.9
Conclusion
There were several indicia10 that precluded this conclusion in the circumstances. These were found to have weighed against the restraint of the law practice and outweighed both the fact that the law practice did not seek consent before making its third-party enquiry, and had not established information barriers.
The court noted that the “bargain” proposed by the plaintiff immediately prior to the application being filed was recognised as having a strong tendency to refute the plaintiff’s argument. That is, that the law practice should be precluded from acting in the interests of the protection of the integrity of the judicial process and the due administration of justice.11 For these reasons, the plaintiff’s application was dismissed.
Sarah Millar is a law clerk at Queensland Law Society Ethics and Practice Centre. This article has been approved by Grace van Baarle, Solicitor and Manager, QLS Ethics and Practice Centre.
Footnotes
1 Souraki Azad v Jose [No 2] [2023] WASC 218.
2 Ibid [5].
3 Ibid [46].
4 Ibid [63].
5 Ibid [88].
6 Ibid [65].
7 Ibid [72].
8 Ibid [73].
9 Ibid [86].
10 Ibid [87].
11 Ibid [88].
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