Ethics Ruling Number
R5002
Area of Law
Family
Category
Conflict of Interest
Ethics Ruling Date
22/07/2021
Ethics Pub Date
1/09/2021
Ethics Background
In circumstances where a solicitor is engaged on behalf of another firm to appear for that firm’s client as an agent, and the solicitor may have obtained confidential information regarding that client in order to appear, the solicitor will be conflicted in subsequently acting against that client on the basis of a former client conflict of interest. This is due to the real risk of disclosure of confidential information, a duty of loyalty owed to the client and the administration of justice. A solicitor who appears for a client on another firm’s behalf remains subject to their ethical obligations. A law firm acted for the mother (‘mother’s firm’) in a family law parenting matter. A solicitor at another firm acted for the father (‘father’s solicitor’). The mother’s firm contended that the father’s solicitor possessed confidential information relevant to the current proceedings and was conflicted in acting against the mother, on the basis that the father’s solicitor had appeared for the mother in her divorce proceedings one year earlier. The mother had previously engaged another firm to act in her divorce matter (‘Firm X’). Firm X had informed the mother that they would engage another solicitor as an agent to appear on her behalf at the divorce application. The father’s solicitor subsequently appeared for the mother at the divorce application. The father’s solicitor acknowledged that he had appeared for the mother only as an agent of Firm X, and denied possessing any confidential information.
Ruling
In the opinion of the Ethics Committee and on the information presented: 1. There is a conflict of interest in the father’s solicitor continuing to act for the husband in the current family law parenting proceedings, on the basis that he has previously appeared for the wife in the divorce matter. Accordingly, the father’s solicitor should cease to act for the father in the current proceedings. 2. The conflict of interest arises due to the real risk of disclosure of confidential information relevant to the current proceedings that may disadvantage the mother. Despite the fact that the father’s solicitor denies possessing any confidential information, there is a high possibility that the information may be recalled during the course of acting for the father given that the appearance occurred one year ago. In any event, acting against the mother constitutes a breach of the duty of loyalty and the administration of justice requires the father’s solicitor to cease to act. 3. A solicitor remains subject to their ethical obligations in circumstances where they appear for a client as an agent for another firm of solicitors.

Law Institute of Victoria
Ethics Committee of Law Institute of Victoria Ltd
Legal Ethics Manager
Phone: 03 9607 9336
Email: ethics@liv.asn.au

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