Osferatu v Osferatu [2015] FamCAFC 177
Courts exercising family law jurisdiction are quick to restrain solicitors for a conflict of interest. Since the McMillan1 case, hiring professional or support staff from opposing firms carried with it the risk that the new employer may be unable to act against the clients of the new hire’s former employer.
However, since 2015 that risk has lessened. The Court now requires an applicant to demonstrate a real (as opposed to a theoretical) possibility that confidential information is at risk.2 The Family Court has also been significantly more willing to accept an information barrier as a solution to the problem posed by a migratory solicitor.
The special sensitivities in family proceedings mean that an application restraining a firm from acting is still more likely to succeed, but some of the authorities applying McMillan must now be viewed with caution.
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1 McMillan and McMillan (2000) 159 FLR 1.
2 Osferatu v Osferatu [2015] FamCAFC 177 (‘Osferatu’).