1. Introduction
1.1 Who should read this Guidance Statement?
This Guidance Statement is for solicitors and law practices.
1.2 What is the issue?
The purpose of this Guidance Statement is to provide guidance about the ethical principles and issues for solicitors and law practices where solicitors in an intimate personal relationship find themselves on opposing sides of a matter.
Practitioners sometimes have or form close personal relationships with others who work within, alongside or in opposition of a matter. These may be family, spousal or de facto relationships, acquaintances, or friendships, each raising their own issues. This Guidance Statement is only concerned with intimate personal relationships, although some of the principles may apply to other close relationships.
In this Guidance Statement an intimate personal relationship1 may include but is not limited to:
- a spouse;
- a de facto spouse or relationship;2
- a couple relationship;3 or
- ‘situational relationships’ (for example, an intermittent or undefined sexual relationship which is not a couple relationship).
This guidance is relevant to recent intimate personal relationships which have ended and may be relevant to other former intimate personal relationships.
1.3 Status of this Guidance Statement
This Guidance Statement is issued by the Queensland Law Society ('QLS') Ethics and Practice Centre for the use and benefit of solicitors.
This Guidance Statement does not have any legislative or statutory effect. By having regard to the content of this Guidance Statement it may be easier for you to account for your actions if a complaint is later made to the Legal Services Commission.
This Guidance Statement is not legal advice, nor will it necessarily provide a defence to complaints of unsatisfactory professional conduct or professional misconduct.
This Guidance Statement represents a standard of good practice and is endorsed by the QLS Ethics Advisory Committee.
2. Ethical principles
ASCR
Rules 3, 4, 5, 9, 12 and 31 apply to this Guidance Statement.
These Rules impose a professional obligation on all solicitors.
3. Summary
In matters where solicitors in an intimate personal relationship find themselves on opposing sides of a matter, consideration may need to be given to disclosing the relationship to the client or prospective client, or not acting, or ceasing to act, in the matter.
In contested criminal law matters, disclosure at a minimum is required, and is advisable in other highly contentious matters. While there is no rule that a solicitor must cease to act in these cases, the courts have said it would at least be undesirable for spouses or de facto spouses to do so. The appropriate course in less contentious matters will depend on the circumstances.
Where the solicitors are not opposing one another in the same or a related matter, but nonetheless work for firms which are opposed, the need for disclosure is less clear and will depend on the circumstances.
4. Ethical considerations
4.1 Key concepts
Whilst a solicitor’s lawful activities undertaken in their private life are generally not regulated by the ACSR, a solicitor must:
- remember their duty as an officer of the court regarding the administration of justice, independence and impartiality;
- act at all times in the best interests of the client;
- not act where there is a conflict concerning the solicitor’s own interests;
- avoid any personal bias;
- not bring the profession into disrepute; and
- ensure that they remain fit and proper.
There is real potential for a solicitor to breach the fundamental ethical obligation to act in the best interests of their client in circumstances where the solicitor has an intimate personal relationship with a solicitor acting on the other side of their client’s matter or for an opposing firm. As noted by Gino Dal Pont:
Fiduciary duties, which apply to lawyer-client relationships dictate that lawyers must give undivided loyalty to clients, without being distracted by other interests including personal interests. Central to fostering loyalty is the prohibition on lawyers engaging with their clients in circumstances involving a conflict of interest and duty, namely where the lawyer’s own interests are not coincident with those of the client.4
Generally, a solicitor in a current or recent intimate personal relationship with a solicitor working on the other side of their client’s matter or for an opposing firm, should consider:
- whether the circumstances would engender reasonable suspicions or apprehension in a fair minded, informed observer as to whether the solicitor acted with fearless independence;5
- their ability to uphold their duty to act in their client’s best interest and to remain independent;
- whether they are confident they can maintain confidentiality, having particular regard to the possibility for inadvertent disclosure;
- whether they should disclose the intimate personal relationship to the client; and
- whether they should act or continue to act for the client.
4.2 Independence
Central to the value a solicitor brings is professional independence, which allows the solicitor to consider the client’s position, dispassionately and without fear or favour, and provide truly independent, arm’s-length advice.6 This extends to the solicitor exercising such independent, forensic judgment when disclosing the relationship to the client or raising the issue when it is apparent that other legal practitioners involved in the matter are in an intimate personal relationship (for example, counsel who a solicitor is instructing being in an intimate personal relationship with opposing counsel or the solicitor for the other party).
The independence of a solicitor who has an intimate personal relationship with a solicitor for an opponent may be called into question, simply because the existence of the relationship may give rise to an apprehension that the solicitor has divided loyalties.
4.3 Confidentiality
There is also a concern that one solicitor may disclose confidential information, even if only inadvertently, to the other solicitor, or may otherwise conduct, or be seen to conduct, the case in a fashion inconsistent with the duty to the court and/or to the client.7
Rule 9 provides that a solicitor must not disclose a client’s confidential information to anyone unless they have their client’s informed consent or the disclosure falls within the other exceptions outlined in r 9.2. Solicitors are required to take reasonable steps to preserve such confidential information8 and must consider whether there is a real risk that such disclosure could occur.9 Inadvertent disclosure could occur in these circumstances, for example, if papers or laptops relating to the representation are left in view or telephone conversations are overheard.10
To the extent any confidential information is inadvertently disclosed, solicitors to whom the material may be disclosed are reminded of their obligation under r 31:
- to not use the material;
- to return, destroy or delete the material (as appropriate);
- to notify the other side of the disclosure and the steps taken to prevent the inappropriate use of the material; and
- to refuse any instruction by their client to read the confidential material received in error.11
A recent non-binding ethics ruling (NBER) by the QLS Ethics Advisory Committee (‘Committee’) stated that while a solicitor is under a duty to pass on to a client (and use) all information which is material to their client's interest, ‘an exception to this obligation arises if the information is obtained accidentally, unlawfully, improperly or surreptitiously’.12 Further, the Committee identifies that a ‘client's instruction to use the inadvertently disclosed information do not override a solicitor's ethical obligations on this issue’.13
In the Canadian decision of Grabber Industrial Products Central Ltd v Stewart & Co,14 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. Although there was held to be no conflict on the particular facts, the Court stated that:
its rules prohibit disclosure by a lawyer to anyone of confidential information obtained in the solicitor-client relation, 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.15
As such, where such partners find themselves working on opposite sides of a matter or for opposing firms, both parties must be and remain extremely vigilant of the possibility of confidential information coming into their possession.
4.4 Conflicts of interest
Solicitors are reminded that, if possible, they should try to avoid any potential conflict. If a conflict should arise, then unless the informed consent of the client has been carefully obtained, the prudent course of action would be to cease acting for the client.
There may also be situations where even informed consent will not overcome the conflict and the solicitor must cease acting in any event. This is likely to be the case where spouses (including de facto spouses) are on the opposite side of a contested criminal matter (or another kind of highly contested matter). The Queensland Court of Appeal in R v Szabo [2000] QCA 194 (‘R v Szabo’) referred to the following statement from the UK Court of Appeal (Criminal Division) in R v Batt [1996] Crim LR 910:
We do express the view that it is generally undesirable for husband or wife, or other partners living together, to appear as advocates against each other in a contested criminal matter. To do may give rise to an apprehension … that the proper conduct of the case may have been in some way affected by that personal relationship.16
A solicitor ceasing to act in such circumstances would likely amount to ‘just cause’ for termination of an existing retainer in such matters.17
The jurisdiction to restrain a practitioner from acting, while regarded as an exceptional remedy by the courts to be exercised with caution after all relevant facts have been ascertained,18 could also arise in these situations. The conflict prohibition extends to perceptions.
The issue in R v Szabo was the non-disclosure of an intermittent de facto relationship between the prosecutor and the defendant's barrister, which had ended before trial but which later resumed. It was not disclosed to the accused and was found to have given rise to a perceived miscarriage of justice in that the appellant could be perceived to not have been afforded a fair trial.19 The appellant's conviction was set aside and a new trial ordered.
The Court of Appeal noted that the relationship alone (which was not that of a current de facto) was an insufficient basis to ground a reasonable suspicion that defence counsel would not properly perform their function,20 but ultimately determined that the appellant should have been informed of the relationship, whether past or continuing, so as to permit the appellant to make an informed decision on whether they wished to continue with defence counsel.21
In other cases where the matter may be less contentious, and not litigious, Dal Pont has noted:
Curial zeal to disqualify justifiably abates where the lawyers are not directly involved in the litigation. Judges do not wish to impinge on personal relationships unless, because of the lawyer’s direct exposure to the matter, and its particular circumstances, disqualification is the only apt response.22
Where the solicitors are not opposing one another in the same or a related matter, but nonetheless work for firms which are opposed, the need for disclosure to the client may be less clear and will depend on the circumstances, such as the size of the firm, their respective areas of practice, the likelihood that they may be exposed to confidential information about the matter, and the nature of their relationship (for example, whether they were spouses or de facto spouses).
For former intimate personal relationships that have not recently ended, solicitors may still need to consider the above issues, but factors such as the time that has elapsed and the nature of the relationship will be relevant.
5. Avoiding or mitigating the risk
While not all intimate personal relationships with an opponent will create a conflict, being transparent with the client is advisable so that potential issues can be considered at the appropriate time and may be managed. As discussed above, this may involve obtaining client consent to act or may result in the solicitor being unable to act, or to continue to act for the client.
Prudent practitioners should:
- Consider first whether it is appropriate in the circumstances to act or to continue to act in the matter.
- Provide full and frank disclosure of relevant intimate personal relationships at the beginning of the engagement or upon becoming aware during the engagement.23
- If obtaining consent, do so by means of a clear and informed waiver from the client preferably in writing (or having it clearly recorded in some other way) as the obligation to demonstrate that they have done so falls upon the practitioner.24
- If the client has consented, consider what measures25 should be put in place to avoid or mitigate risks arising from the intimate personal relationships. Appropriate information barriers26 and similar measures could include locked electronic access of files restricted to specific staff only, appropriate undertakings, protocols for telephone contact, separate office spaces, and arrangements limiting the solicitor’s interaction with others at the firm.27
- Considering whether the client should be advised to seek independent legal advice, especially where the client is not a sophisticated client.28
This Guidance Statement should not be taken by law firms as requiring the general collection of personal information from solicitors about their current or former intimate personal relationships. QLS does not consider this to be necessary or appropriate and doing so may be contrary to Rule 42 of the ASCR and legislation such as the Anti-Discrimination Act 1991 (Qld).
6. More Information
Solicitors are also referred to The Australian Solicitors Conduct Rules Commentary, Queensland Law Society.
For further assistance, including difficulties you may be experiencing as either a supervisor or as a practitioner who is being supervised, please contact an Ethics Solicitor in the QLS Ethics and Practice Centre on 07 3842 5843 or ethics@qls.com.au, or a QLS Senior Counsellor.
1 The term ‘intimate personal relationship’ is also used in the Domestic and Family Violence Act 2012 (Qld) (see pt 2, div 3), to include a ‘spousal relationship’ (including a de facto partner), ‘engagement relationship’ and a ‘couple relationship’. The term in this Guidance Statement is wider in that it includes ‘situational relationships’ that may not be ‘couple relationships’ (see above).
2 A ‘de facto relationship’ is defined for other purposes in s 4AA of the Family Law Act 1975 (Cth). Two people, who may be of the same or opposite sex, as a couple living together on a genuine domestic basis may be considered as having a ‘de facto relationship’.
3 See, eg, Domestic and Family Violence Protection Act 2012 (Qld) s 18 (meaning of ‘couple relationship’).
4 Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 7th ed, 2021) 360 [6.05].
5 R v Szabo [2000] QCA 194, [6].
6 Queensland Law Society, Acting for Family and Friends (Guidance Statement No 23, 23 August 2021).
7 Dal Pont (n 4) [17.70].
8 Dal Pont (n 4) [10.145].
9 Osferatu & Osferatu [2015] FamCAFC 177.
10 American Bar Association, Conflicts Arising Out of a Lawyer’s Personal Relationship with Opposing Counsel (Formal Opinion 494, 29 July 2020).
11 See also Queensland Law Society, Inadvertent Disclosure (Guidance Statement No 18, 20 April 2020).
12 Queensland Law Society, Non-Binding Ethics Ruling (2024) 7 (8 November 2024) [63].
13 Ibid.
14 [2000] BCCA 206.
15 Ibid [2].
16 R v Szabo (n 5) [69]-[70].
17 Queensland Law Society, Termination of a Retainer (Guidance Statement No 8, 31 August 2017).
18 Re L (Minors) (Care Proceedings: Solicitors) [2001] 1 WLR 100; McKay v Forrest (2018) 336 FLR 172.
19 R v Szabo (n 5) [81].
20 Ibid [63].
21 Ibid [64].
22 Dal Pont (n 4) [7.55].
23 See Law Society of New South Wales v Harvey [1976] 2 NSWLR 154, [160] (Street CJ) as to what constitutes ‘full and frank disclosure’, as to the best way to obtain consent.
24 Di Giovanni v Council of the Law Society of New South Wales [2024] NSWCATOD 66, [61]. Solicitors may also be assisted by para 5.1 of Queensland Law Society, Disclosure of third party relationships (Guidance Statement No 38, 4 September 2024).
25 Osferatu & Osferatu (n 9) [66].
26 Information Barrier Guidelines contained in Appendix B of the ASCR Commentary.
27 Hatzis & Hatzis [2022] FedCFamC1F 745. See also the Information Barrier Guidelines contained in Appendix B of the ASCR Commentary.
28 Dal Pont (n 4) [7.80].