Direct conflicts
What is a direct conflict of interest?
When a lawyer's personal interests conflict with the interests of their client.
What is a current client conflict?
Where a lawyer is acting against a current client in the same transaction.
When a lawyer is acting against a former client in the same transaction.
True or false: All jurisdictions have the same Information Barrier Guidelines
False
Rule __._ states the exceptions for when a lawyer can continue acting for client despite a direct conflict of interest.
12.4
Who bears the onus of proof to show the client's consent was informed?
The lawyer
Where can you find the regulations for former client conflicts of interest?
Rule 10 of the ASCR
What rule provides regulation for short term legal assistance?
Rule 11 of the ASCR
Why is it recommended that a client receives independent legal advice before providing informed consent to a direct conflict?
So that the lawyer's interests are not prioritised or not seen as being prioritised over the client's.
Why might a lawyer represent multiple parties in one transaction?
It might be faster, cheaper and in some rural areas another lawyer may be hard to come by
What specific conflicts of duty arise when a lawyer is trying to acting against a former client?
Conflict with a duty of confidentiality and of loyalty (Victoria)
True or false: Even if you follow the Information Barrier Guidelines, you may still be removed from acting against a current or former client.
True
What is an example of a direct conflict?
If you are a lawyer and
What is required from the client if a lawyer wishes to continue representing them despite a conflict?
Informed consent!!
To prevent misuse of confidential information
The Court deems it necessary for the proper administration of justice
The lawyer may still owe a fiduciary duty to the former client
What are some considerations a court must make when deciding if an information barrier is sufficient?
If there is confidential information and whether this information relates to the case
If there remains a risk that this information can be accessed by the other party
What challenges might a lawyer face, even after full disclosure is made and consent is given?
Client may rely to heavily on lawyer's expertise without full understanding
There may be a public perception that the lawyer is taking advantage of the client, though not it might not necessarily be true
What is an example of a current client conflict?
In a property case, A lawyer who is representing both the buyer and seller - the seller wants to sell the property for a high price whilst the buyer wants the property for a low price
A lawyer representing 2 companies in a merger - both companies want what’s best for themselves, conflict may arise
Victoria
To prevent the complaint from being seen as a tactical weapon.