Non-Binding Ethics Ruling (2024) 7

Introduction

1. This is a non-binding ethics ruling (NBER) by the Ethics Advisory Committee (Committee) of the Queensland Law Society (QLS).

2. The ruling relates to a dispute between Firm A and Firm B as to whether the principal of Firm B (Mr X) is in a position of conflict.

3. On 23 November 2022, Client B was arrested and charged with the attempted murder of Client A. Client A is a client of Firm A, having originally sought assistance from Firm A in or about September 2022 in relation to domestic violence and Family Law issues. Firm A continues to provide legal advice to Client A. On 28 February 2023, Firm B accepted a referral from Legal Aid to act on behalf Client B. At the time Firm A was originally advising Client A, Mr X’s wife, Mrs X, was an employee of Firm A in a non-legal capacity. Mrs X commenced extended leave in February 2023 and her employment with Firm A formally concluded in February 2024.

4. The dispute between the parties concerns whether or not Mr X is in a position of conflict arising from the fact that he acts on behalf of Client B. Firm A contends that Firm B should cease acting for Client B as it is concerned that Mrs X might inadvertently share confidential information relating to Client A with Mr X.   Mr X maintains there has been no breach of his obligations under the Australian Solicitors Conduct Rules 2012 (ASCR), as no confidential information has been shared with him and further the risk of such a transfer occurring is fanciful or theoretical.

Materials provided

5. The Committee has received the following materials:

(a) Letter: Firm B to QLS dated 24 October 2023 (sent on behalf of both parties), attaching:

(i) Document headed 'In the Matter of a Non-Binding Ethics Ruling', setting out the issues and submissions of both parties (Submissions);

(ii) Letter: Client A to Client B dated 18 April 2023;

(iii) Letter: Firm B to Firm A dated 28 April 2023;

(iv) Letter: Firm A to Firm B dated 18 May 2023; and

(v) Letter: Firm B to Firm A dated 15 September 2023;

(b) Email: Firm A to QLS dated 26 October 2023;

(c) Email: Firm B to QLS dated 26 October 2023;

(d) Email: Legal Aid to Firm B dated 17 January 2023;

(e) Email: Firm A to QLS dated 24 January 2024;

(f) Letter:  Firm B to QLS dated 30 January 2024;

(g) Email: Firm B to QLS dated 9 February 2024;

(h) Letter: Firm B to QLS dated 16 February 2024;

(i) Email: Firm A to QLS dated 21 February 2024;

(j) Letter: Firm B to QLS dated 26 February 2024; and

(k) Email: Firm A to QLS dated 26 February 2024.

Facts

6. From the material referred to in paragraph 5 above, the facts, which the Committee understands are relevant to this NBER, are as set out in paragraphs 7 to 27 below.

7. In July 2022, Mrs X was employed by Firm A. During 2022, Mrs X held the position of Assistant Director, which has been described to the Committee as a managerial position that did not involve providing direct client services.^[1] Although Mrs X once practised as a lawyer,^[2] she no longer holds a practising certificate.^[3]

8. In September 2022, Client A became a client of Firm A. Firm A describes Client A as a particularly vulnerable person as she:  

(a) is from a non-English speaking background;

(b) has no family support in Australia;

(c) is separated from her husband, (Mr W), with whom she is reported to have had a relationship marred by domestic violence and coercive control; and

(d) has suffered significant physical and psychological issues.^[4]

9. Between September 2022 and May 2023, Firm A acted for Client A in the following  applications:

(a) protection orders in the Domestic Violence Court;

(b) parenting orders in the Federal Circuit and Family Court (FCFCOA);

(c) financial orders in the FCFCOA;

(d) temporary assessment orders filed by the Department of Child Safety, Seniors and Disability Services (Department);

(e) court assessment orders filed by the Department; and

(f) child protection orders filed by the Department.^[5]

10. Firm A reports that from 7 September 2022 onwards, multiple Firm A staff members both legal and non-legal worked collaboratively to support Client A.^[6]  While Mrs X did not work directly on Client A’s matters, Firm A says she 'was within earshot' of numerous discussions regarding Client A and her minor children, which included conversations about safety planning and criminal matters.^[7]

11. In September 2022 and November 2022, Client B swore affidavits in support of Client A's estranged husband making serious allegations against Client A.^[8]

12. It is alleged that on two occasions in November 2022, while Client A was having supervised visits with her minor children, Client B approached Client A and urged her to return to her estranged husband.^[9]

13. On 23 November 2022, Client B was arrested and charged with attempting to murder Client A.^[10] Since their arrest, Client B has been held on remand at the Correctional Centre.^[11]

14. Following Client B's attack on Client A, Firm A says that Mrs X was involved in discussions as to whether the Firm A office should go into lockdown as part of the office's workplace health and safety management.^[12]

15. On 28 February 2023, Firm B accepted a referral from Legal Aid to act on behalf of Client B.^[13] The principal of Firm B is Mr X, who operates Firm B as a sole practitioner.^[14] Mr X is Mrs X's husband.^[15]

16.On 28 February 2023, for reasons unrelated to this matter, Mrs X commenced a period of extended leave from Firm A. Mrs X did not return to the Firm A office following this date.^[16] However, Firm A reports that while on leave Mrs X retained access to the Firm A database and shared files, including all client files.^[17]

17. On 31 March 2023, Firm B engaged Counsel to act on behalf of Client B.^[18]

18. On 18 April 2023, Client A wrote a letter to Client B, which was received by Client B at the Correctional Centre.^[19]

19. On 28 April 2023, Firm B wrote to Firm A:

(a) to advise that Firm B acted on behalf of Client B; and

(b) to request that future communications be directed to Firm B's office.^[20]

20. On 18 May 2023, Firm A wrote to Firm B outlining Client A's concerns about her confidential information being inadvertently shared between Mr and Mrs X and requested that Firm B cease acting on behalf of Client B.^[21]

21. On 2 June 2023, Firm B wrote to Firm A advising that Firm B would not cease acting for Client B, but that it would agree to refer the matter to the Committee for a NBER.^[22]

22. On 11 September 2023, Client B's matter was committed to the Supreme Court.^[23]

23. On 26 October 2023, the Office of the Director of Public Prosecutions (DPP) confirmed that it had been notified of the parties’ request for a NBER. The DPP has elected not make submissions in respect of this NBER.^[24]

24. On 17 January 2024, Legal Aid confirmed that it had been notified of the parties’ request for an NBER. Legal Aid has elected not make submissions in respect of this NBER.^[25]

25. On 12 February 2024, Mrs X's employment at Firm A formally concluded.^[26]

26. On 15 February 2024, the indictment of Client A's charges was presented to the Supreme Court.^[27]

27. Client B's trial has been set down before the Supreme Court in mid-2024.^[28]

The parties' positions

Firm A's Position 

28. Firm A makes it clear that while it does not allege any impropriety by Firm B,^[29] Firm A is concerned about:

(a) the risk that Client A's confidential information will be inadvertently disclosed by Mrs X to Mr X,^[30]

(b) the perception that there may have been or there could be a transfer of Client A's confidential information;^[31] and

(c) the perceived or apprehended misuse of Client A's confidential information.^[32]

29. Firm A contends that: 

(a) if Client A's confidential information is compromised it may risk the safety of Client A and her minor children, particularly if the confidential information is shared with Client B who in turn passes the information on to Client A's estranged husband;^[33] and

(b) Client A is a potential witness in the attempted murder charge against Client B. If this occurs, Client A's character will be open to evaluation. Client A's apprehension of the misuse of her confidential information may be such that Client A's sensibilities are overborn to a degree that she suffers emotional harm or distress or is otherwise disadvantaged as a witness.^[34]

30. Public interest in the due administration of justice outweighs the public interest associated with Client B being deprived of Firm B acting on Client B's behalf and any inconvenience or cost associated with Firm B ceasing to act for Client B.^[35]

31. Mr X's paramount duty under the Australian Solicitors Conduct Rules 2012 (ASCR) is to the court and to the administration of justice. It prevails to the extent of inconsistency with all other duties.^[36] This is an exceptional case and in order for justice to be done and to be seen to be done, and to ensure the integrity of the judicial process and the administration of justice (including the appearance of justice), Firm B should cease to act for Client B.^[37]

Firm B's Position

32. Firm B contends that the submissions made by Firm A:

(a) reveal merely fanciful or theoretical risks, and not real ones;

(b) are lacking in cogent and persuasive evidence; and

(c) do not demonstrate or identify any transgression of the ASCR.^[38]

33. Firm B submits that even if it was found there is a theoretical risk of danger to confidential information, a reasonably informed ordinary member of the public would not conclude that the proper administration of justice requires the Court to intervene and restrain Firm B from acting because: 

(a) no confidential information has been passed from Mrs X and Mr X;

(b) Mr X is an experienced officer of the court, and is alert to maintaining the integrity of his role;

(c) Mr X has undertaken to provide details in writing to Firm A if he does receive any confidential information;

(d) Mrs X is a mature and professional woman, who has held managerial roles and is unlikely to misuse confidential information, even if it is recalled from her subconscious; and

(e) Mr X is aware of the application of the ASCR and there is no evidence or reason to suggest he would act without propriety.^[39]

34. Firm B contends that, on balance, a Court would not conclude that justice requires Client B to be deprived of representation by Mr X.^[40] 

35. Just as Firm A has described Client A as a particularly vulnerable person, Firm B has also made submissions regarding Client B's circumstances, noting that: 

(a) Client B is young and without financial means to meet  legal expenses;

(b) Client B was raised in a household with family violence;

(c) English is not Client B's  first language;

(d) Client B's education does not extend past high school level;

(e.) Australia is not Client B's country of origin and Client B had only been in Australia for less than one year before being arrested;

(f) Client B is incarcerated;

(g) Client B is facing serious criminal charges without [family support];  

(h) Client B has been deprived of any connection with their siblings for almost one year;

(i) it can be readily inferred Client B is also experiencing psychological difficulties; and

(j) there are limited support services available or accessible for Client B.^[41]

Issues for the Committee

36. The parties have asked the Committee to consider two questions as part of the NBER: 

(a) Is Mr X's ethical responsibility to continue to provide legal representation to Client B conflicted or overborne by the concerns raised by the Firm A?

(b)Would the Supreme Court's inherent supervisory jurisdiction to ensure the due administration of justice to protect the integrity of the judicial process be invoked, so as to require Mr X to be restrained from acting for Client B?

37. The Committee's consideration of the question outlined in paragraph 36(a) appears below at paragraphs 45 to 93.

38. The Committee declines to answer the question outlined in paragraph 36(b). It is not for the Committee to comment or speculate on what the Supreme Court might decide if presented with this matter. The Committee does not provide legal advice. 

39. An NBER is intended to provide guidance where there is a dispute between two practitioners, or their respective law practices, regarding an ethical issue. The Committee is not a court or tribunal. It does not have the benefit of receiving sworn evidence. It is unable to determine questions of fact. The only pieces of information before the Committee are the submissions and documents delivered by the parties. The parties' submissions undoubtedly do not articulate the issues as fulsomely as they would if they had been prepared to be argued before the Supreme Court. In the circumstances, the question of whether the Supreme Court would restrain Firm B from acting for Client B can only be answered by the Supreme Court itself. 

THE AUSTRALIAN SOLICITORS CONDUCT RULES 2012 AND THE LEGAL PRINCIPLES 

Paramount duty to the court and the administration of justice 

40. The starting point for a consideration of the present issues is Rule 3 ASCR, which provides:

3.1 A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

Other fundamental duties 

41. Rule 4 ASCR provides: 

4.1 A solicitor must also: 

4.1.1    act in the best interests of a client in any matter in which the solicitor represents the client; 

             …

4.1.4   avoid any compromise to their integrity and professional independence; and 

4.1.5   comply with these Rules and the law. 

Confidentiality 

42. Rule 9 ASCR provides: 

9.1 A solicitor must not disclose any information which is confidential to a client and acquired by the solicitor during the client's engagement to any person who is not: 

9.1.1    a solicitor who is a partner, principal, director, or employees of the solicitor's law practice; or 

9.1.2.   a barrister or an employee of, or person otherwise engaged by, the solicitor's law practice or by an associated entity for the purposes of delivering or administering legal services in relation to the client, 

EXCEPT as permitted in Rule 9.2. 

9.2 A solicitor may disclose confidential information if: 

9.2.1     the client expressly or impliedly authorises disclosure; 

9.2.2     the solicitor is permitted by law or is compelled by law to disclose it; 

9.2.3   the solicitor discloses the information in a confidential setting, for the sole purpose of obtaining advice in connection with the solicitor's legal or ethical obligations; 

9.2.4   the solicitor discloses the information for the sole purpose of avoiding the probable commission of a serious criminal offence; 

9.2.5   the solicitor discloses the information for the purpose of preventing imminent serious physical harm to the client or to another person; or

9.2.6   the information is disclosed to the insurer of the solicitor, law practice or associated entity.         

Inadvertent disclosure 

43. Rule 31 ASCR provides: 

31.1 Unless otherwise permitted or compelled by law, a solicitor to whom material is known or reasonable suspected to be confidential is disclosed by another solicitor, or by some other person and who is aware that the disclosure was inadvertent must not use the material and must: 

31.1.1  return, destroy or delete the material (as appropriate) immediately upon becoming aware that disclosure was inadvertent; and 

3.1.2 notify the other solicitor or the other person of the disclosure and the steps taken to prevent inappropriate misuse of the material. 

31.2 A solicitor who reads part or all of the confidential material before becoming aware of its confidential status must: 

          31.2.1     notify the opposing solicitor or the other person immediately; and 

          31.2.2     not read any more of the material. 

31.3 If a solicitor is instructed by a client to read confidential material received in error, the solicitor must refuse to do so. 

Supervision of legal services 

44. Rule 37 ASCR provides: 

37.1 A solicitor with designated responsibility for a matter must exercise reasonable supervision over solicitors and all other employees engaged in the provision of the legal services for that matter. 

Consideration

45. The parties have asked the Committee to consider the following question:  

Is Mr X's ethical responsibility to continue to provide legal representation to Client B conflicted or overborne by the concerns raised by Firm A? 

46. Taking into account the parties' submissions, the Committee considers this question could also be phrased as follows: 

Is the risk of an inadvertent transfer of confidential information from Mrs X to her husband sufficient to:

(a) place Mr X in a position of conflict; or 

(b) undermine the administration of justice, 

such that the Committee would recommend that Mr X should cease acting for Client B? 

47. In order to fulsomely consider this question the Committee believes it helpful to break down and consider the issues as follows: 

(a) What is confidential information?

(b) Who has the onus of establishing the transfer of confidential information?

(c) What are Firm A's obligations to protect the confidential information?

(d) Does a conflict arise as a result of the relationship between Mr and Mrs X?

(e) Is the risk of inadvertent transfer of confidential information in this case sufficient for the Committee to recommend that Mr X cease acting for Client B?  

(f) Is there a perception that the administration of justice could be undermined if Mr X continues to act for Client B?

Question 1: What is confidential information? 

48. There is no single definition of 'confidential information', as it applies to the relationship between solicitor and client, however, the term has been considered in multiple cases: 

(a) In Babcock & Brown DIF III Global Co-Investment Fund LP and DIF III GP Ltd v Babcock & Brown International Pty Ltd and Others ^[42] the court considered that communications (apart from matters of common or public knowledge) between a client and a solicitor for the purposes of obtaining or giving legal advice would have necessary ingredient of confidentiality against all persons unless, by reason of implied direction or otherwise, the solicitor was authorised to provide the communication to a third party.^[43]

(b) In Re A Firm of Solicitors^[44]the court held that confidential client information is that which is:

(i) originally communicated in confidence;

(ii) still confidential at the time of the subsequent proposed retainer; and

(iii) relevant to the subject matter of the subsequent proposed retainer.

(c) In LPCC v Trowell^[45]the court found 'confidential information' includes:

(i) information learned in the professional relationship with the client, including information not had but for the relationship;^[46]

(ii) information of a confidential nature learned prior to the lawyer/client relationship (the lawyer's duty arising on the formation of the lawyer/client relationship);^[47] or

(iii) information in the public domain, depending on the extent of publicity and authority of the source, as repetition of such information may give that information credibility.^[48]

(d) In Quann v Wilson & Atkinson (a firm)^[49] the court considered that confidential information could also be defined as information that remains confidential and may reasonably be considered remembered or capable, on the memory being triggered, of being recalled.^[50]

49. Both Firm A and Firm B agree that Client A is a client to whom a duty of confidentiality is owed.^[51] As it is Firm A that acts for Client A, the duty to protect her confidential information rests with that organisation.

50. Firm A has not provided details of the type or class of confidential information it holds on behalf of Client A, nor the type or class of confidential information it is concerned might be inadvertently transferred to Mr X, other than to say that the disclosure of such information may compromise Client A's safety.

51. Without information as to the type or class of information Firm A is concerned will be disclosed, the Committee cannot make any comment as to how or why that information is relevant in the context of the criminal proceedings against Client B or how the disclosure of that information could harm Client A.

Question 2: The onus of establishing the transfer or possession of confidential information 

52. The majority of cases that deal with the potential misuse of confidential client information arise from the situation where a solicitor is, or potentially is, in possession of confidential information relating to a former or current client.

53. This is not the situation in the present case. Client A and Client B are not opposing litigants in commercial litigation. Rather, Client B has been charged with the attempted murder of Client A and Client A will most likely be called as a witness at trial.  

54. However, as Firm A contends that Mr X should refrain from acting for Client B, the Committee considers that the principles set out in the cases discussed in the following paragraphs do provide guidance.   

55. The onus of proving that confidential information has or could be transferred to Mr X, which could be misused to Client A's detriment, rests with Client A and in turn Firm A.  This obligation was established in the decision of Prince Jefri Bolkiah v KPMG (a firm)^[52] which provided that:

[I]t is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own.^[53]

56. This issue was also discussed in the decision of the Full Court of the Family Court, Osferatu v Osferatu (‘Osferatu’). ^[54] In that matter, the court was of the view that a party seeking to restrain a solicitor from acting must discharge his or her burden of proof by adducing cogent and persuasive evidence and outlining the classes of information he or she feels to be at risk, including why it relates to the current matter and how misuse would be detrimental to them.^[55]

57. Once a client has discharged the onus of proving that the solicitor is in possession of confidential information, the next step involves a consideration of the risk that the relevant confidential information will be disclosed. The court concluded that 'the consideration should be whether there is a real risk of misuse as opposed to one which is merely fanciful’.^[56]

58. The risk of disclosure is to be determined by considering the risk and of any protective measures taken or proposed by the solicitor or his or her new firm. The evidentiary burden regarding those protective measures falls squarely on the firm responsible for implementing them.^[57]

59. Before any determination can be made as to whether a lawyer should be restrained from acting, a court must balance:

(a) the nature of the information against a consideration of the person to whom the information was given;

(b) when the information was given;

(c) the relevance of that information to the current proceedings;

(d) the risk of disclosure; and

(e) any proposed protective measures.^[58]

60. In the decision of Osferatu, the Full Court came to the conclusion that the wife's application to restrain the husband's solicitors should be dismissed. In reaching this conclusion, the court found the following persuasive:

(a) the failure of the wife to point to any particular type of information disclosed to [the husband's solicitors] that would lead to a reasonable belief that information may be used against her or to her disadvantage in the current proceedings before the court; and

(b) the strong and appropriate measures (specifically an information barrier to prevent access to the electronic or physical files) undertaken at [the husband's firm] to quarantine [the solicitor in question] from having any advertent or inadvertent contact with the proceedings, including undertakings from the partners of that firm to maintain those measures.^[59]

61. Considering the principles outlined in Osferatu, in the present case:

(a) as discussed above, the Committee has not been advised of the nature or class of the information which might be used to Client A's detriment;

(b) Firm A has not identified or provided evidence that Mrs X is in fact in possession of any confidential information, rather it is suggested that as a result of her time physically present in the Firm A office between 1 September 2022 and 28 February 2023, she might be in possession of some confidential information;

(c) there is no evidence that any confidential information has in fact been transferred from Mrs X to Mr X;

(d) as to the relevance of the information to the current criminal proceeding:

(i) Firm A contends that Client A's apprehension of the misuse of her confidential information may be such that Client A's sensibilities are overborn to a degree that she suffers emotional harm or distress or is otherwise disadvantaged as a witness;^[60]

(ii) Firm A does not make submissions as to how Client A's confidential information could be relevant to Client B's trial or how it might impact upon the conduct of the trial (including any prejudice that may be suffered by Client A);

(e) the risk of disclosure has been expressed as being that Client A's confidential information will be inadvertently disclosed by Mrs X to Mr X;^[61] and

(f) finally as to proposed protective measures:

(i) as Mr X is a sole practitioner, practical measures such an information barrier cannot be applied or are indeed relevant in circumstances where:

(A) Mr X has not previously acted for Client A; and

(B) on the facts available to the Committee, he is not in possession of Client A's confidential information;

(ii) Mr X has stated that if at some time in the future, while he is representing Client B, he does receive confidential information relating to Client A, he is willing to provide details in writing to Firm A.^[62]

62. If Client A's confidential information is inadvertently disclosed to Mr X, he in fact has an obligation under Rule 31 ASCR:

(a) to not use the material;

(b) to return, destroy or delete the material (as appropriate);

(c) notify Firm A of the disclosure and the steps taken to prevent the inappropriate use of the material; and

(d) refuse any instruction by his client to read the confidential material received in error.

63. A solicitor is under a duty to pass on to a client (and use) all information which is material to their client's interests. However, the Committee considers that an exception to this obligation arises if the information is obtained accidently, unlawfully, improperly or surreptitiously.^[63] While a solicitor must inform their client that there has been an inadvertent disclosure, the solicitor cannot disclose the confidential information to the client.   A client's instructions to use the inadvertently disclosed information do not override a solicitor's ethical obligations on this issue.^[64]

64. Turning to the present case, if Mrs X were to inadvertently reveal to Mr X some personal detail relating to Client A, not only is Mr X obliged to immediately inform Firm A of this disclosure, he is also obliged to maintain the confidentiality of that information and not pass it on to his client or use it to Client B's benefit. Mr X would then have an onus to ensure that effective measures are implemented to ensure that no further disclosures occur.^[65]

Question 3: What are Firm A's obligations to protect the confidential information? 

65. The Committee acknowledges that the protective measure discussed in Osferatu were those to be implemented by the firm allegedly receiving the confidential information.^[66] However, in the present case the Committee considers it should also comment on Firm A's obligations to protect its client's confidential information.

66. The implication of Rule 9 ASCR is that a solicitor must not only not disclose a client's confidential information, they also have to take reasonable steps to preserve confidential information in their possession and to prevent inadvertent or unauthorised access to that information.

67. The Committee specifically asked Firm A what steps it has taken to protect Client A's confidential information and the following response was received:

'[Firm A] took no steps to create an information barrier because we did not know it was necessary to do so at the time.  This is because [Mrs X] left on extended leave the same day that Mr X accepted instructions to act for [Client B].  It is the inadvertent transfer of information from [Mrs X] to [Mr X] in the months prior to her departure on 28 February 2023 that is of concern to [Firm A] – especially after the attack on [Client A] in late November 2022, when the staff of [Firm A] were in a heighted state ensuring [Client A's] legal and non-legal needs were addressed urgently (including a hospital bedside interim hearing in the FCFCOA) and ensuring the safety of the [Firm A] staff members. 

Prior to her departure on 28 February, [Mrs X] was not involved in any matters directly related to [Client A] however, was privy to much discussion between team members about [Client A] and her children… 

[Mrs X] was physically present in the small open plan work spaces in both the offices that [Firm A] occupied in the relevant time … Due to the layout and physically small office spaces, [Mrs X] was within earshot of numerous discussions concerning [Client A] and her children, Mr W, and [Client B], which included conversations about safety planning and criminal matters.  [Mrs X] regularly used an office adjacent to the Acting Director/Principal Solicitor’s office in the first office, and had her door open when staff members came to the Principal’s office to discuss these matters (also usually with the door open.) As mentioned above, there were also many discussions occurring in the open plan spaces in both offices between team members. [Firm A] cannot be certain if [Mrs X] ever engaged actively in any of these discussions but was certainly able to hear them. [Mrs X] and the Principal had a discussion about the [Firm A] office going into lockdown after the attack on [Client A] on 23 November (i.e. having to have the office locked to the public for an extended period), as [Mrs X] was responsible for the office’s workplace health and safety management.'[67]

68. Firm A separately advised the Committee that although Mrs X commenced extended leave on 28 February 2023, she retained access to the Firm A data base and shared files, including all client files.^[68] The Committee presumes that Mrs X's access ended when her employment was formally concluded on 12 February 2024.

69. The Committee acknowledges that prior to 28 February 2023, it could not have known that Mr X would accept instructions to act on behalf of Client B. However, the Committee is of the view that Firm A still had an obligation to take proactive steps to protect Client A's confidential information before and after this date.

70. Given the sensitive work that Firm A routinely undertakes it is hoped that it does have appropriate protocols in place, however, at a minimum the Committee would expect:

(a) a confidentiality clause in the employment contracts of all staff;

(b) the ability to restrict access to physical and electronic files as and when required;

(c) avoiding 'open door' or 'open plan' conversations involving confidential client information; and

(d) an education or training program for all staff members instilling the obligation of confidentiality and protecting client's confidential information.

71. In the present case, the Committee considers that on learning of Mr X's appointment, Firm A should have immediately taken steps to:

(a) restrict Mrs X's access to the Firm A data base and client files (particularly given that she was on leave during this period and there was presumably little need for her to have access following 28 February 2023); and

(b) write to Mrs X to remind of her obligations of confidentiality and seek an undertaking that she would not:

(i) discuss any aspect of the matter with Mr X; or

(ii) disclose any confidential information of which she might be apprised.

72. There is no evidence before the Committee that such steps were taken. It is concerning to the Committee that it does not appear that Firm A took any steps to restrict Mrs X's access to files relating to Client A on learning of Mr X's representation of Client B, despite expressing its concern regarding the inadvertent transfer of confidential information. By failing to do this, the Committee is of the view that Firm A has contributed to the difficult situation the parties find themselves in.

73. In addition, Rule 37 ASCR provides that a solicitor with designated responsibility for a matter must exercise reasonable supervision over solicitors and all other employees engaged in the provision of legal services for that matter. The Committee considers that this extends to ensuring the protection of a client's confidential information.

74. It is not an excuse to say that because Mrs X is not a lawyer nor bound by the ASCR she is somehow at liberty to disclose confidential client information.^[69] The solicitor or solicitors responsible for Client A's matter are bound by the duty of confidentiality and have an obligation to ensure that all non-legal staff members are aware of that obligation and that appropriate protocols for all staff members are put in place.

75. Further, it is noted that Mrs X, while not employed in a legal role at Firm A, was at one time a practising lawyer. It can be inferred that she has an understanding of a lawyer's ethical obligations as to confidentiality and the requirement to protect a client's confidential information.

76. While Mrs X was not acting in a legal capacity at the relevant time, it is important to note that if she had been, the absence of a practising certificate does not release an admitted solicitor or barrister from their duties as officers of the court.^[70] The duties and obligations of a lawyer arise from the common law and their special status as officers of the court, these duties are not affected by whether a lawyer has a practising certificate.^[71]

Question 4: Does a conflict arise as a result of the relationship between Mr and Mrs X? 

77. A question arises as to whether Mr X is in a position of conflict as a result of his relationship with Mrs X, even in circumstances where no client confidential information has been transferred. 

78. There are no Australian professional conduct rules which specifically deal with the situation where a couple in a personal relationship find themselves working for firms on the opposing sides of a matter.^[72] Professor Dal Pont addresses this issue in his text Lawyers' Professional Responsibility,^[73] where he states:

Yet, even though lawyers representing each client may be employed by different firms, that they share a relationship or otherwise cohabit can give the appearance of conflict. In fact, from both the perspective of appearances, and the risk of (inadvertent) disclosure of confidential information, cohabitation may present as more concerning than that of lawyers employed by the same firm but, say, in different cities (or even floors).^[74]

79. In the Canadian decision of Grabber Industrial Products Central Ltd v Stewart & Co,^[75] the British Columbia Court of Appeal considered a matter where the senior partner at the firm Stewart & Co was the husband of the corporate solicitor for Grabber Industrial Products Central Ltd (Grabber). Briefly: 

(a) Stewart & Co was acting for a plaintiff suing Grabber for a debt. Grabber contended that there was a perception of unfairness and that Stewart & Co was in a position of conflict.^[76]

(b) The Law Society of British Columbia joined as an intervenor on the appeal and made submissions in support of Stewart & Co contending that "its rules prohibit disclosure by a lawyer to anyone of confidential information obtained in the solicitor-client relationship, and that in the absence of evidence to the contrary, of which there is none in this case, it should not be presumed that lawyers will breach their professional duty of confidentiality, and run the risk of professional discipline."^[77]

(c) The senior partner of Stewart & Co filed an affidavit, that at no time had his wife given him any confidential information about the affairs of Grabber or its related entities and that he did not know they were clients of his wife until he received a letter informing of that fact.^[78]

(d) The judge at first instance concluded that 'while there might "at the very worst" have been a perception of "mischief" there "was no real mischief"' and refused to grant a declaration that there was a conflict of interest and restrain Stewart & Co from acting.^[79]

(e) The Court of Appeal concluded that:

(i) a lawyer, in the absence of client instructions to the contrary, may disclose a client's affairs to his law partners and associates, as such disclosure is commonly necessary for the efficient and proper disposition of the client's business;^[80]

(ii) however, between spouses, the opposite rule applies.  A lawyer is prohibited by their duty to their client from disclosing confidential information to anyone, unless authorised by the client. Spouses clearly fall within the ambit of this prohibition. Where there is a clear rule against disclosure, and where the lawyer would run the risk of professional discipline for breach of confidentiality, any inference or presumption that a lawyer will share professional confidences with their spouse should not arise.^[81]

(iii) the judge did not err in refusing a declaration of conflict or refusing an injunction restraining the respondent from acting further in the litigation.^[82]

80. The Committee acknowledges that the current scenario involves criminal proceedings, as opposed to commercial litigation. However, parallels can be drawn from the decision of Grabber in that: 

(a) both matters involve a husband and wife;

(b) in both matters the husband states that he has not received any client confidential information from his wife; and

(c) there is no evidence that any confidential information has in fact been transferred between the spouses.

81. Although Mrs X is not a practising lawyer, as an employee of a legal practice, she presumably had, at the very least, a contractual obligation to maintain the confidentiality of any client information of which she might be aware. 

82. In light of the fact that this is a criminal proceeding, the decision of R v Szabo^[83] (‘Szabo’) is also relevant. In Szabo the court considered whether the fact that there was an 'on and off again' de facto relationship between a defendant's barrister and the prosecutor, which was not disclosed to the defendant at the time of trial, was a ground for an appeal on the grounds of miscarriage of justice. In that decision the Queensland Court of Appeal held: 

(a) the defendant appellant's counsel was under a duty to inform his client of his former relationship with the prosecutor and its current state;^[84]

(b) the defendant's appellant's counsel having failed to perform that duty, an ordinary fair-minded citizen in the position of the appellant, with knowledge of all relevant circumstances, would entertain a reasonable suspicion that justice had miscarried, notwithstanding that the appellant's representation was seemingly competent;^[85] and

(c) the conviction was set aside and a new trial ordered.

83. In Szabo, the Court of appeal noted that there was no suggestion of any actual, improper disclosure of material by the defence counsel to the prosecutor.^[86] The mere fact that the defence counsel was in a relationship with the prosecutor would not necessarily be a sufficient basis to ground a reasonable suspicion that he would not perform properly as a defence counsel.[87] However, disclosure of the relationship was necessary and the client should have been given the opportunity of indicating whether they wished to continue with counsel.^[88]

84. The Parties have advised that this matter has been brought to the attention of Legal Aid and DPP. Both organisations were invited to make submission in this matter and both declined.^[89]

85. No information has been put before the Committee as to whether Client B has been apprised of this matter and is aware of the relationship between Mr X and Mrs X, and Mrs X's previous employment at Firm A. The Committee strongly recommends that if he has not already done so, that Mr X disclose to Client B:

(a) the issues raised by Firm A regarding their client's concern about the inadvertent transfer of client confidential information;

(b) that his wife was previously employed by Firm A and the nature of her employment; and

(c) that in the event any confidential information is inadvertently transferred from Mrs X to Mr X, that Mr X cannot use or disclose that information to Client B

in order to obtain Client B's informed, written consent that Client B wishes to have Mr X continue to act in this matter.    

Question 5: Is the risk of inadvertent transfer of confidential information sufficient for the Committee to recommend that Firm B cease acting for Client B? 

86. Ultimately, it is the court that has the supervisory jurisdiction over the officers of the court and it is exclusively placed to determine whether a solicitor, in continuing to act for a particular client, is serving the proper administration of justice.^[90]  

87. In Premier Capital (China) Ltd v Sandhurst Trustees Ltd,^[91]  Pagone J set out the various considerations that can impact on the court’s exercise of jurisdiction to restrain a solicitor from acting in a particular case. They can be summarised as follows: 

(a) The exercise of the Court’s jurisdiction to restrain a solicitor from acting is exceptional and must be exercised with caution.

(b) The jurisdiction to restrain a practitioner from acting for a client in judicial proceedings is an incident of the Court’s inherent jurisdiction over its officers to control its process in aid of the administration of justice.

(c) An important consideration against the exercise of the jurisdiction is that a litigant should not be deprived of his or her choice of lawyer without good cause.

(d) Applications by opposing parties for the removal of their opponent’s lawyers should not be made lightly and need scrutiny.

(e) A party seeking the removal of an opponent’s legal practitioner is not seeking to exercise a right, but moving the Court to exercise its power over its own officers.

(f) An applicant may have obligations to the Court when making such applications to satisfy the Court that the application is necessary and not made for collateral advantage.

(g) It is therefore essential that an injunction to restrain a practitioner from acting on behalf of a client must be firmly based on the need for that to occur in the administration of justice.^[92]

(h) The test to be applied in the exercise of this jurisdiction is: the objective test to be applied is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice required that the lawyer be prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of lawyer without good cause.^[93]

(i) In application of the test, sight should not be lost of the severity of the consequence of such an order for the client. The conclusion to be reached is that justice “requires” a client to be deprived of his or her choice of lawyer. That has been said by Professor Dal Pont to require the Court’s inquiry into "whether a fair-minded, reasonably informed person would find it subversive to the administration of justice to allow the representation to continue”.^[94]

88. It is clear taking into account all of these factors that the jurisdiction to restrain a practitioner from acting is to be regarded as exceptional and exercised with caution after all relevant facts have been ascertained.

89. The key facts, as understood by the Committee are summarised above at paragraphs 7 to 27.  

90. On the material before the Committee, there is no evidence or information:  

(a) as to the nature or class of the information which might be used to Client A's detriment;

(b) that Mrs X is in fact in possession of any confidential information, rather it is suggested that as a result of her time physically present in the Firm A office (in a non-legal role, without direct client contact) that she might or could be in possession of some confidential information;

(c) that any confidential information has in fact been transferred from Mrs X to Mr X.

91. This must be balanced with Client B's right to have the legal representative of Client B's choosing and the prejudice Client B might suffer if another solicitor has to step in and take over Client B's legal defence.  There is a substantial cost to parties and the community (particularly when a defendant is funded by Legal Aid) if a lawyer withdraws potentially requiring an adjournment of the hearing.  However, in saying this it is imperative that Client B is advised of the issues that have been raised by Firm A and of the relationship between Mr and Mrs X, so that Client B can give their fully informed consent that Client B is willing to have Mr X continue acting on their behalf.

92. On the basis of the authorities above, and the material currently before the Committee, it cannot conclude that Mr X must cease acting for Client B. In circumstances where there is no evidence that there has been a transfer of any confidential client information, it cannot be presumed that Mr X will breach his professional obligations under the ASCR.

93. The fact that these issues have been raised, however, puts Mr X on notice and he must remain extremely vigilant of the possibility of confidential information inadvertently coming into his possession. If this occurs, he must take immediate steps in accordance with his obligations under Rule 31 ASCR to inform Firm A and to not use that information for the benefit of his client.

Question 6: Is there a perception that the administration of justice could be undermined if Firm B continues to act for Client B?

94. The question that is far more difficult for the Committee to answer is whether, despite the authorities outlined above and the lack of evidence demonstrating the transfer of confidential information, there could still be a perception that the administration of justice is undermined if Firm B continues to act on behalf of Client B.

95. The complaint laid by Firm A in support of Client A's position is that:

(a) her safety may be compromised; and / or

(b) as Client A is a potential witness in the attempted murder charge against Client B, Client A's character will be open to evaluation. Client A's apprehension of the misuse of her confidential information may be such that Client A's sensibilities are overborn to a degree that she suffers emotional harm or distress or is otherwise disadvantaged as a witness.

96.Cases which discuss what is 'fair' or what a 'fair-minded and informed observer' might apprehend in the context of a criminal proceeding, such as a Szabo, R v Phillips,^[95] R v Hamade^[96] and R v Pham^[97] consider these questions from the perspective of prejudice to the defendant as opposed to the victim or a witness of the alleged crime.

97. However, the stress and trauma that criminal proceedings can cause to a victim should not be understated or diminished. This is exacerbated in circumstances such as the present case.

98. The Committee notes the comments made in reports such as Hear Her Voice^[98] and A Call for Change^[99] which have made findings that:

(a) courtrooms do not make victims feel safe;^[100]

(b) victims often feel unsafe and not able to give their best evidence in court;^[101]

(c) lawyers engaged with victims and perpetrators across the criminal law and civil law systems play a significant role in keeping victims safe;^[102]

(d) perpetrators use lawyers and the justice system to continue their coercive control of a victim of domestic violence and some lawyers unwittingly act as the agent of a perpetrator to further abuse the victim;^[103]

(e) victims suffer unnecessary stress because of prosecution failures to make prompt applications for victims to give their evidence from remote witness rooms;^[104]

(f) a victim-survivor has the right to have their privacy protected and their reputation not unlawfully attacked.^[105]

99. The Committee has no doubt that giving evidence at Client B's hearing will be a stressful, if not a traumatic experience for Client A.  This would be the case even without the scenario that the Committee has been asked to consider. The Committee hopes that Client A receives support during the trial and that appropriate measures are taken to ensure her safety by those who are in a position to do so.

100. Adopting the language used in the cases cited above at paragraph 96 one could phrase a question as follows:  

Would an ordinary fair-minded observer perceive that the administration of justice could be undermined if Firm B continues to act for Client B to the possible detriment of Client A?^[106]

101. Again, without evidence or information as to the type or class of information Firm A and Client A are concerned could be inadvertently transferred to Mr X, the Committee can only speculate as to how it may impact Client A in what is already a traumatic and extremely difficult situation. It makes it difficult to balance against the prejudice Client B may suffer in having to change lawyers months out from trial.    

102. The Committee considers that the perception of whether the administration of justice will be undermined is a question on which ordinary, fair-minded observers may differ. 'Perception' involves a degree of subjectivity which will be influenced by the observer's experience. For this reason, the Committee cannot categorically say that there will not be a perception by some in the community that the administration of justice could be undermined.  

103. If Mr X continues to represent Client B and the circumstances regarding his wife's former employment are made public, in the course of a trial that is likely to attract media attention, Mr X and indeed, all parties involved will no doubt face scrutiny. If this is something Mr X is not comfortable with or wishes to avoid then the prudent course of action would be to cease acting for Client B, irrespective of the fact that no confidential information has been transferred inadvertently or otherwise.

Conclusion 

104. Summarising the analysis and discussion conducted above, the Committee's view on the material currently before it is that:  

(a) In November 2022, Client B was arrested and charged with attempting to murder Client A.

(b) The indictment against Client B is currently expected to proceed to trial.

(c) Client A is represented by Firm A for matters involving domestic violence and Family Law issues.

(d) Between July 2022 and February 2024, Mrs X was employed as an Assistant Director at Firm A. This was a managerial role and did not involve any direct client involvement.

(e) On 28 February 2023, Mr X was appointed by Legal Aid to act on behalf of Client B.  

(f) On the same day, for what the Committee understands are unrelated reasons, Mrs X commenced a period of extended leave and did not return to work at Firm A. Her employment at Firm A formally concluded on 12 February 2024.

(g) Although Firm A has outlined its concerns that Client A's confidential information could be inadvertently transferred to Mr X by Mrs X, there is no evidence or information before the Committee:

(i) as to the nature or class of the information which might be used to Client A's detriment;

(ii) that Mrs X is in fact in possession of any confidential information, rather it is suggested that as a result her time physically present in the Firm A office (in a non-legal role) that she might or could be in possession of some confidential information;

(iii) that any confidential information has in fact been transferred from Mrs X to Mr X.

105. As outlined above, whether a solicitor should be prevented from acting for a client is to be determined by reference to whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a solicitor not act, in order to ensure that the integrity of the judicial process and the due administration of justice is maintained. Preventing a solicitor from acting for a client is a jurisdiction that a court will exercise with caution and only in exceptional circumstances, after giving weight to the public interest in a defendant not being deprived of the solicitor of choice without due cause. 

106. The Committee is not in the same position as a court. It does not have the benefit of receiving sworn evidence or the ability to test evidence and the issues between the parties have not been fulsomely articulated.  At present, there is not enough material before the Committee for it to conclude that public perception on the proper administration of justice outweighs Client B's right to use the solicitor of Client B's choice (providing it is a fully informed choice for the reasons outlined in paragraphs 82 to 85 above). 

107. Central to this issue is the question of what information Mrs X might be in possession of relating to Client A, which could be inadvertently transferred to Mr X and used to Client A's detriment.  The onus to prove this rests with Client A / Firm A and the Committee is not satisfied that this has been demonstrated. 

108. However, taking into account all of the material that has been placed before the Committee, if Mr X continues to act on behalf of Client B, the Committee recommends that he proceeds with the utmost caution. Mr X must remain vigilant and in the event he inadvertently receives any confidential information he must take steps in accordance with his obligations under the ASCR to notify Firm A and to not use that information for the benefit of his client.  

109. The parties must also remain cognisant of the fact that the perception of whether the administration of justice could be undermined is a question upon which fair-minded observers will differ. By continuing to act for Client B, Firm B will be subject to ongoing scrutiny. Therefore, in our view the prudent course of action would be for Firm B to cease acting for Client B.  However, on the material made available to the Committee, and for the reasons stated above, we consider that decision, to be a matter for Mr X. 

^[1] Firm A and Firm B, ‘In the Matter of a Non-Binding Ethics Ruling’, Submission in Firm A v Firm B, 7, October 2023, [3] (‘Submissions’).