Central to the family law proceedings was whether the wife’s solicitor, Mr E should be restrained from acting further on the basis that he had engaged in a brief, preliminary conversation with the husband’s brother (the third respondent in the matter) days before being formally retained.1
The relevant question before the court was whether Mr E had received confidential information from the third respondent that would place him in a position of conflict should he continue representing the wife, therefore making restraint necessary in the interests of justice.2
A solicitor’s duty to avoid conflicts concerning former clients is outlined in r 10 of the Australian Solicitors’ Conduct Rules (‘ASCR’). The rule states that a solicitor must avoid acting for a current client if they possess a former client’s confidential information that might reasonably be concluded to be material to the current client’s matter, and, if used, detrimental to the former client’s interests.3
Per the Glossary to the ASCR, the definition of a ‘former client’ contains an important qualifier extending it to include a person who has provided confidential information to a solicitor even without a formal retainer.4
The third respondent hence relied on this technical point to argue that his brief 15‑minute conversation with Mr E created a conflict of interest sufficient to warrant the court’s exceptional jurisdiction to restrain a solicitor from acting.
In order to weigh up whether restraint was necessary, Justice Simpson cited the requirements for restraint outlined in Kallinicos v Hunt5: that a solicitor may only be restrained if a fair-minded, reasonably informed member of the public might conclude it is necessary to preserve the integrity and appearance of justice.6
Referencing Sent v John Fairfax Publication Pty Ltd,7 Justice Simpson affirmed that restraint may indeed be justified by the real and sensible possibility of misuse of a former client’s confidential information, a principle grounded in the utmost confidence inherent in the lawyer-client relationship.8
Importantly, the party seeking restraint must carefully identify the specifics of what they claim is confidential information, as well as the reason why it may be prejudicial to the current client’s case if misused.9
Mr E rebuked this claim by clarifying he had only received general information that ended up being aired in court either way, evidenced by phone records and a detailed file note taken at the time of the call.10
The note, prepared as part of Mr E’s ‘usual habit’ for client management, became a significant factor in the court’s assessment of the submitted evidence, with Justice Simpson remarking that ‘[t]he existence of that contemporaneous record weighs in favour of acceptance of Mr E’s version of the discussion’.11
The routine act of taking a file note carried substantial evidentiary weight when placed before the court, demonstrating once again the importance of keeping detailed records of client interactions, whether current or merely preliminary.
Justice Simpson ultimately concurred, finding the information disclosed was not confidential nor could reasonably be expected to imperil the respondent’s case.12
His Honour also noted that given the wife’s vulnerability, the additional time required, and duplication of legal costs associated with engaging new solicitors, it would be a ‘distortion of the due administration of justice and the appearance of justice if she was compelled, in these circumstances, to secure new representation.13
Footnotes
1 Ibid [22]–[30].
2 Ibid [49].
3 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 10; Australian Solicitors’ Conduct Rules 2023 (Qld) r 10.
4 Kozlova & Zajc (n 1) [54].
5 [2005] NSWSC 1181 [76].
6 Kozlova & Zajc (n 1) [56]–[57]. In Charisteas & Charisteas [2022] FedCFamC1A 160 at [37], the Full Court expressed a preference for using the phrase ‘might conclude’ as a lower threshold than ‘would conclude’.
7 [2002] VSC 429.
8 Ibid [33].
9 Kozlova & Zajc (n 1) [64], citing Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 at [38].
10 Ibid [69]–[70].
11 Ibid [73], [76].
12 Ibid [91].
13 Ibid [138], [141].
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