Ordinarily we would love to take on all clients that approach our door. However, before you enter it is important for us to ask some questions to determine whether it is appropriate for you to do so. For example, a new family law client will often hear – “what is your spouse/partner’s name”. This will ordinarily be followed by a conflict check to determine whether we currently act or have acted for your spouse in the past. We perform conflict checks to avoid a conflict of interest which, if found later down the track, could be detrimental to your case.
Solicitors practising in all areas of law are bound by their ongoing duty of loyalty and confidentiality owed to both current and former clients, meaning they must avoid disclosure of confidential information communicated to them by a client. Solicitors must also act in the best interests of their client which cannot be achieved where two clients have competing interests. These duties are fundamental to the maintenance of a trusted lawyer-client relationship which continues well into the future whether that solicitor or firm still acts for them or not.
Conflicts can make many forms but recent decisions in the Family Courts have emphasised the need to minimise conflicts in this area because of the highly sensitive and personal nature of such matters. Conflicts of interest in Family Law can take many forms including:
- Where a solicitor has acted for a couple on their purchase of property or business;
- Where a solicitor can anticipate a direct financial benefit or advantage from a certain client;
- Where a family member has made direct contributions towards the matrimonial pool; or
- Where an Independent Children’s Lawyer’s independence can be clearly challenged.
In some cases, a court may order that a party be restrained from retaining a particular solicitor or firm act for them. Where the Court is required to assess whether a practitioner can act or continue to act for their client, the Family Courts have loosened their approach over the years. In McMillan & McMillan , the Full Court said “the client only need to give evidence that he has provided confidential information to the solicitor… the client does not have to divulge the content of that information”. The Court found a “theoretical risk” that the information disclosed would be misused is sufficient rather than a “real possibility” and that proof of prejudice was not necessary. This test is stricter than that set out in other areas of law.
However in 2015, the Court in Osferatu & Osferatu shifted away from a “theoretical risk” and emphasised the need for evidence to support whether confidential information has been disclosed to the conflicted practitioner.
Overall, the Family Courts are a discretionary jurisdiction meaning it is up to the discretion of the judge as to what approach or weight is attributed to a potential conflict. Regardless of which way the court finds it is always best to eliminate the potential for a conflict from the outset rather than later on at trial.
If you would like family law advice please contact us on 42 222 666 or at email@example.com