Practitioners are reminded that where a person has a reasonable expectation that the information that they provide to the practitioner is done so in confidence then it is likely that the client and solicitor relationship will exist.
Such conversations may occur in a variety of social settings or alternatively when a friend of the practitioner refers another person to them for what may be described as a general chat. If the solicitor-client relationship arises as a consequence of that chat then that person may be considered a former client.
Dependent on the information imparted in confidence, the solicitor may find that they are disqualified from representing a new client against the former recipient of the chat. Dependent on the confidential information provided and subject to tests in rule 10 of the Australian Solicitor Conduct Rules 2012 (ASCR) the practitioner may be in a situation of conflict.
Although the practitioner has had a conversation in good faith and with good intentions and may not even intend to charge for services, the recipient of those services is likely to be considered a former client. There are dangers in the practitioner accepting referrals from friends where the recipient will be referred elsewhere by the practitioner. Practitioners should be wary of social occasions where approaches are made to them. A good adage to remember is when in doubt, don’t.
Stafford Shepherd,
Principal Ethics & Practice Counsel
Legal Practitioner Director, QLS Ethics and Practice Centre