In the recent case of Mihova & Mihova,1 the court dismissed an application brought by the wife to restrain the husband’s solicitors from continuing to act, in circumstances where the wife had previously attended the offices of that law practice for an initial consultation in the months prior to the commencement of the proceedings.
The court was satisfied that there was no real risk of confidential information being disclosed to the solicitors who had carriage of the husband’s matter, particularly by virtue of the undertakings provided by the solicitors at the law practice and the information barriers in place.
In September 2024, the wife attended an office of the law practice (now retained by the husband) and had a consultation with a solicitor in relation to the family law matter, though she did not subsequently retain the firm. Several months later, the firm then filed a Notice of Address for Service on behalf of the husband in the proceedings and had been on the record since that time. The wife then brought the Application seeking to restrain the husband’s solicitors from continuing to act for him in relation to the property proceedings and various related orders.
The court accepted that confidential information was provided by the wife to the solicitor with whom she had the consultation. In considering whether confidential information had already been disclosed to the lawyers who now worked for the husband, the court was satisfied that on the evidence of the solicitors from the firm and the undertaking of the solicitor who had the consultation with the wife, that this had not occurred.
The court then considered the information barriers put in place by the firm to ensure that disclosure did not occur in the future. The court had regard to the following evidence in finding that there would be no real risk of confidential information being disclosed to those who now worked for the husband, particularly given the undertakings so provided:
a) The husband waived his right to receive any confidential information from the firm;
b) Notes from initial appointments where the client does not engage the firm beyond the initial appointment are kept by way of photocopies and/or handwritten notes and not stored electronically;
c) That note storage method appeared to have occurred here, as entry of the wife’s details into the practice management system did not reveal that the wife had engaged with the firm;
d) No other lawyer has access to notes taken during initial consultations;
e) With respect to the husband’s file on the firm’s electronic storage system, only those acting on the husband’s matter are able to access the information contained therein;
f) The solicitor that met with the wife has been told not to discuss anything in relation to a conference with the wife with any other practitioner in the firm.
It was submitted on behalf of the wife that the restraint should nonetheless be made on the basis that it was necessary to do so to protect the integrity of the judicial process and the appearance of justice. The court considered that the circumstances fell well short of the examples put before it. There was only one relatively brief conference, and that occurred well before the proceedings were commenced. There was no retainer beyond the one initial appointment. The solicitor with whom the conference occurred worked in a different team from the employees who have carriage of and work on the husband’s file, and those who supervise the employees working on the file.3
As the court acknowledged, “Each case falls to be determined on its own facts. In another case, it might be that the initial engagement was lengthier or in some other way more substantial, a costs agreement was signed, and/or further steps were taken beyond an initial engagement”.4 In this case, the court was not satisfied that it should exercise its jurisdiction to restrain the husband or his lawyers.
For more information on the approach taken to conflict issues in the Family Court see the following case note: Osferatu v Osferatu [2015] FamCAFC 177 – conflicts in family law proceedings – a more pragmatic test
Footnotes
1 [2025] FedCFamC1F 113.
2 Ibid [27].
3 Ibid [38].
4 Ibid [41].
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