Direct Conflict
The lawyer's personal interests conflict with those of the clients.
What is direct conflict?
The term coined for the things a solicitor learns about their client.
What is getting to know you factors?
What is preventing confidential information from the former client from being accessed by those working for the new client, called?
Information Barrier
Why was Susan and the client, in a current client conflict?
They had the same lawyer and conflicting information.
What are the two major areas of indirect conflict of interest?
Former client and current client
Provide a scenario of a solicitor having a direct conflict of interest with their client
- Borrowing/lending money from a client
- Business dealing with a client
- personal relations with client
- Lawyer as a witness
- Beneficiary under will
What are some 'perceptions' a solicitor may learn about a client, that could be classed as confidential information?
Their, strengths, weaknesses, honesty, and case tactics.
What is the Courts opinion of Information Barriers?
Historically, courts have been skeptical of these barriers, as seen in D&J Constructions v Head (1987). However, with the growth of large law firms and increased professional mobility, recent cases, like Photocure ASA v Queen's University at Kingston [2002]*, have recognised that effective information barriers can mitigate conflicts with successive clients.
If the solicitors third cousins friend was affected by the workplace safety accident, would this constitute a direct client conflict?
No, as per 14.4.2 not an immediate family member and their connection doesn't jeopardise their ability to provide legal advice.
What are the two instances lawyers are restrained from acting for former clients?
1. Protection of misuse of confidential information.
2. To prevent abuse of process in the courts
What happens if a solicitor has to be a material witness for their client's case?
An associate of the solicitor, or a law practice, of which the solicitor is a member may, act for the client, as a material witness.
Name two factors which may permit or restrict the release of confidential information.
The proximity of relationship, and time span of the client solicitor relationship.
How do different jurisdictions operate information guidelines?
The ACT and Queensland Law Societies have approved the use of these guidelines. However, in Victoria, solicitors are considered to have a 'duty of loyalty' to former clients, which is not recognized in Queensland, as established in *Flanagan v Pioneer Building Society Ltd [2002]
Why did Christian Porter's lawyer get removed from his legal council?
Because it was an indirect former client conflict.
What is the risk of representing multiple defendants in the same criminal trial?
Risks of representing multiple defendants can occur, if parties have different stories, this may affect the decision on who is the primary defendant vs an accessory and if a conflict surrounding this matter arises, it could lead to a miscarriage of justice, because an accused’s representation wasn't effective.