Solicitors now move freely between law firms, and a stay of more than 3-4 years in any one spot is unusual. While the increased mobility of practitioners is no doubt empowering for both practitioners and clients, the evolution of a more fluid profession creates issues around confidentiality, for which firms must make provision.
Specifically, a solicitor can find themselves moving from a firm acting for one party in a matter, to a firm acting for the other particularly in a smaller town. That creates a potential conflict if the solicitor is in possession of confidential information belonging to the first party, which would be of advantage to the second party.
It should be noted that no conflict will arise if the solicitor moving firms has had no involvement / knowledge in the matter, as they will not possess any information which might trigger a conflict but practitioners should be aware that there is always the inherent jurisdiction of the court referred to below.
Rule 10 of the Australian Solicitors Conduct Rules 2012 anticipates this situation, and provides guidance in relation to solicitors and firms acting against former clients.
In the case of a solicitor moving from firm A to firm B, in circumstances where each firm represents opposing parties in the same matter, Firm B should ensure that the measures mandated by rule 10 have been taken. Informed written consent from the former client is rarely forthcoming, and in any event is problematic. The question will always be whether or not the former client was sufficiently informed of the consequences of allowing the firm to remain involved, and is vulnerable to a change of heart from the client. The establishment of an information barrier is easier for the firm in question to manage, and QLS has guidelines on such barriers here.
That said, information barriers may not be a panacea in all cases. The courts have yet to come to a consistent position on the issue. In Osferatu v Osferatu1 the court found that it will act to restrain only where there is a real, if not substantial, risk of misuse, and accepted information barriers as a reasonable tool to manage the risk. In that case the court found that the party seeking the restraint should have outlined the classes of information they felt to be at risk, its relevance, and how misuse would be detrimental to them.
Similarly in Zani v Lawfirst trading as Bennett + Co2 the court found that having an information barrier and undertakings in place addressed the potential conflict. That can be contrasted with Gavan & Mickell3 where the court found that despite solicitors working in different offices, information barriers in place and undertakings having been given, the Court could not be satisfied that the risk of transmission had been eliminated.
Practitioners should also keep in mind that the court always retains an inherent jurisdiction to restrain a solicitor from acting for a client where the court concludes that the proper administration of justice requires that the solicitor be prevented from acting.4 This jurisdiction extends to circumstances where, despite there being an absence of genuine conflict, a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a solicitor should be prevented from acting.
1 [2015] FamCAFC 177.
2 [2014] WASC 75.
3 FedCFamC1F 280.
4 Kallinicos v Hunt (2005) 64 NSWLR 561.