Queensland Law Society

Conflicts in family law proceedings – a more pragmatic test

Osferatu v Osferatu [2015] FamCAFC 177

Since McMillan v McMillan[1] in 2000, even the “theoretical risk” that a former client’s (or opposing client’s) confidentiality will be compromised has been sufficient to preclude a whole firm from continuing to act in matrimonial proceedings, even if they have represented a party for a considerable period.

The “theoretical risk of misuse” test adopted in that case has complicated life significantly when employing new staff (whether partners, solicitors or paralegals) who have previously been exposed to a matter in their former employment. Even if they are to have nothing to do with the file, the new employer may be unable to continue to act if the other side asserts that their confidentiality could be breached.[2] Even the new employee’s general knowledge of the client may be sufficient to trigger a restraint, absent any specific confidential information.[3]

This has created a significant problem for regional and rural practices where many lateral hires will come with some involvement in opposed matters. It has also made it difficult to judge where some involvement with a couple (e.g. doing wills or conveyancing for them) precludes the firm acting for one of them upon separation.

The issue arises outside the family jurisdiction as well, but commercial courts have been far more likely to accept an undertaking and information barrier as a reasonable solution to the problem.

The Family Court of Appeal decision, Osferatu[4] marks a significant convergence in the approach between family law and commercial law conflict restraint applications. Although the Court expressly confirmed that the family law jurisdiction remains especially protective of a “former client’s” confidential information, there is a significant change in that it:

  • adopted a less stringent “no real risk” test; and
  • required the party seeking restraint to clearly point to specific confidential information at risk.

See the below article for a more comprehensive discussion.

[1] (2000) 159 FLR 1.

[2] The definition of “former client” in the Australian Solicitors Conduct Rules 2012 can include a person who has instructed an employee/partner’s old law firm. See: Seidler & Seidler [2010] FMCAfam 1394, Royce & Royce [2012] FamCA 400.

[3] Karapataki v Karapataki [2011] FMCAfam 6.

[4] Osferatu v Osferatu [2015] FamCAFC 177.