A. Every solicitor knows it is their fundamental duty to act in the best interests of the client; protecting confidential information and avoiding any conflicts of interest. Because of this, the concept of “information barriers” has historically been met with scepticism by the Courts and legal ethics groups - until now.
Chinese walls, or information barriers, have traditionally been used as a way to stop confidential information being disclosed when a solicitor acts against a former client. They have been a topical tool of rebuttal to the doctrine of ‘imputed knowledge’, which suggests that all partners in a firm share the firm’s knowledge.
However, in the absence of sanctioned information barriers, the Courts have usually decided each conflict case on its own merits.
More recently, the growth of modern law firms, in an era of increasing professional mobility, has warranted re-examination of information barriers and the development of associated guidelines. The LIV, in conjunction with the NSW Law Society, has approved a set of guidelines intended for enforcement by the Courts and professional regulators. Working together, the two law societies have introduced a common model defining rules on conflict of interest that can be implemented in all states.
The Information Barrier Guidelines (pdf) adopted by LIV Council and NSWLS in 2006 provide a fair and objective basis for firms to assess the adequacy of measures they are taking to avoid a conflict of interest. While the guidelines represent a shift away from ad hoc protocols, they are not prescriptive rules. It remains the overriding power of the Courts to obstruct breaches of confidentiality and duty of loyalty to former clients, and to address the conduct of practitioners in individual cases.
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