Depending on where you live, there can be a limited number of law firms specialising in family law in your area, which can lead to potential conflicts of interest. What should you know about conflict of interest issues?
The courts balance the needs as well as the rights of both parties in any family law matter, including on the subject of conflicts of interest. And things can get complicated if a solicitor has, for example, acted for a couple in relation to property or business interests, but then is later engaged to act for one of the parties in a family law dispute.
When is there a conflict of interest?
The following factors are relevant in determining whether there is a conflict of interest in a solicitor acting for a particular client.
1. Do the solicitors have the confidential information?
Firstly, it’s necessary to prove that the solicitor actually holds or has had access to relevant sensitive information of the other party.
2. How much of a risk of misuse is there?
The risk of the information being misused is evaluated. It has to be a real risk, not just a theoretical one. For example, taking a close look at the confidentiality practices of the solicitor or law firm, and whether the solicitor or firm has satisfactory ways of creating an “information barrier” to prevent the misuse of confidential information. All lawyers are bound by an ongoing duty of confidentiality to current and former clients. This includes avoiding disclosure of confidential information which has been supplied by a client. This duty is ongoing, even if a solicitor ceases to act for that party.
3. Is there any way to reduce the risk?
Even if there is an established conflict of interest, that in itself may not enough. You’ll need to show that nothing can be done to attenuate (or lessen) the risk of misuse of the confidential information.
For instance, the risk might be reduced if a solicitor gives an undertaking not to speak to the other party about a client’s affairs.
4. Has the application been brought in a timely way?
Timeliness is typically a factor in legal proceedings, and the same goes for a conflict of interest issue. The earlier a possible conflict of interest is identified, the better.
If litigation has already progressed through numerous hearings, and only then a party draws attention to a conflict of interest problem, it will be relevant to assess whether it would now prejudice the other party to have to find new solicitors if they may have already spent significant funds on their current lawyer.
Be aware of an “implied waiver”, which is where if a party accepts the other party’s solicitor’s continuing representation, this implies a waiver of the right to object to that legal representative appearing in the proceeding.
It is up to the judge to decide on an approach to a potential conflict. A judge can order that a party is restrained from hiring a particular solicitor or firm. But rather than leave it to the point of needing a court to rule on the issue, it’s always best to try to avoid the potential for a conflict in the first place.
If you feel there may be a conflict of interest in a situation where you may have once discussed sensitive information with a solicitor who your spouse is now engaging in litigation against you, it is very important this is tackled immediately and certainly before lengthy proceedings are underway.
If you need representation in a family law matter, talk to Alliance Family Law to hear how we can deal with your matter professionally and confidentially. Do you need assistance with a property settlement or advice in relation to a potential conflict of interest issue? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors at Alliance Family Law on (02) 6223 2400 for a no-obligation first conference.
Please note our blogs are not legal advice. For information about how to obtain the correct legal advice, please contact Alliance Family Law.