As a new client to a Family Law practice, you will often be asked an array of questions before your initial consultation such as ‘what is your partner’s name’. Whilst this may seem arbitrary or unnecessary, questions like these serve a great purpose. By confirming the other party’s details before their consultation, new client’s allow law firms to conduct Conflict of Interest checks to ensure that their partners have not been acted for, currently, or even in the past.
Of course, Freedman & Gopalan Solicitors, and all other law firms in New South Wales, welcome all. However, in order to maintain the highest level of professional conduct, all law firms and solicitors must abide by rules set out by the Legal Professions Act 1987 – Rules. Accordingly, per rule 3 of the Act, ‘a practitioner must not accept a retainer to act for another person in any action or proceedings against, or in opposition to, the interest of a person (a) for whom the practitioner or the firm…has acted previously; and (b) from whom the practitioner or the practitioner’s firm has thereby acquired information confidential to that person and material to the action or proceedings; and that person might reasonably conclude that there is a real possibility the information will be used to the person’s detriment’.
So, What Does This Mean?
In plain terms, rule 3 means that a legal practice cannot act against a person for whom they have acted in the past and from whom they have gained confidential information from, pertaining to the matter at hand. For instance, if a lawyer has past knowledge of confidential information provided to them by person A, they should not act against this former client if Person A’s partner, Person B wishes to retain their services, as this would create an unfair advantage.
The legislation uses the phrase, ‘a real possibility the information will be used to the person’s detriment’. This demonstrates that the goal of this rule is to protect clients from having information which they shared in confidence, used against them in proceedings.
Why is this Important for Law Firms?
Proceeding forth with a client, despite a clear conflict of interest constitutes as unsatisfactory professional conduct, which is defined by section 296 of the Legal Profession Uniform Law (NSW) as an act (or omission) occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. As such, providing a questions or forms to initial clients is imperative to ensuring law firm’s carry out their due diligence, and means that existing or previous clients do not have to fear when sharing information with their solicitors.
Where do we Draw the Line?
At first, the standard to which a conflict of interest is held, was explained in McMillan & McMillan [2000], whereby the Full Court said, “the client only need to give evidence that he has provided confidential information to the solicitor… the client does not have to divulge the content of that information”. This is enough to establish a ‘theoretical risk’ that information may be used to disadvantage said client.
However, in 2015, the court in Osferatu & Osferatu proposed that the theoretical risk is too narrow, and that rather, a ‘real possibility’ needed to be established. This means that there needs to be evidence to support whether any confidential information has actually been disclosed.
Finally, the Family Court is a discretionary jurisdiction, meaning that the discretion of the presenting judge dictates which approach is taken, and based on context, understanding and perception, the conflict of interest can either be proven or disproven. Whatever the outcome may be, it is important for law firms and solicitors to exercise professional rules and their duties of fairness and confidentiality, and not represent a party whom is in opposition to a past client.