Clearly there are ongoing obligations to maintain the confidences of former clients and any cross-examination in violation of this obligation is prohibited. But what if the cross-examination dealt only with matters on the public record, such as the criminal record of the former client?
The Western Australian case of Fordham v Legal Practitioners Complaints Committee (1997) WAR 467 involved a barrister in just such a situation. The practitioner in this case was found guilty of unsatisfactory professional conduct for cross-examining a recently former client even though the court conceded that confidentiality had not been breached. Exacerbating the issue, however, was the fact that the cross-examination involved facts common to her own retainer with that client. The court found that:
- her actions amounted to a breach of loyalty to her client irrespective of any breach of confidentiality;
- her actions could have led a reasonable observer to conclude that she had indeed used confidential information to the detriment of her former client;
- she had breached a duty not to adopt a position hostile to a former client in the same or a related matter.
We can possibly dismiss the first of these as the idea of loyalty beyond the retainer appears to have gone the way of the fob watch and waistcoat (with the possible exception of Victoria). The other two reasons, however, display the court’s jealousy to preserve public confidence in the law and the legal profession. These last two reasons would continue to be influential in a similar situation today.
Does this amount to a prohibition on acting? No, but you must keep in mind how a reasonable observer would consider such a move. There are some factors you should consider before proceeding:
- Confidentiality: Clearly there is a prohibition on using confidential or privileged information gained during the retainer against your former client.
- ‘Getting-to-know-you’ factors: Not all confidential information is found in your files. In criminal and family matters in particular, the court considers the impressions you gained about the person – their character, habits, strengths, weaknesses, attitudes – as also being ‘information’ gained during the retainer, and places restrictions on its use due to concerns over its prejudicial effect.
- Relevance to the current matter: Clearly if you are representing a client in a matter arising from the same set of facts for which you represented the former client, then cross-examining the former client becomes problematic. The challenges of navigating a course through your duties to your current client and your duties of confidentiality to your former client would likely place you in an irretrievable conflict of duties. Learn from Fordham and steer clear.
- Proximity to the current matter: Obviously this is related to the point above but focuses on the period of time since you represented the former client. Someone you represented 10 years ago in an unrelated matter is less likely to raise ethical barriers to cross-examination than someone you represented a short time ago.
- Strength of the relationship with the former client: If you were this person’s lawyer over an extended period, your former client may well regard you as ‘their lawyer’ far more than someone you represented fleetingly as a duty lawyer. In such a situation you would also have built up a sizeable bank of ‘impressions’ that may preclude you from cross-examining a former client even if the matters are unrelated.
There are so many variables that a 'one size fits all' answer is not possible. As always, your informed discretion based on the facts of each case will decide what is appropriate. It appears that a continuum exists with proximity to the original representation(s), relevance to the present matter and strength of lawyer-client relationship weighing heavily against the appropriateness of cross-examining a former client. At the other end of the scale is a former client whose remoteness in time, relationship and relevance to the current matter would be less likely to offend our ‘reasonable observer’.