Pulled in Every Direction Conflicts & How to Avoid Them AUSTLAW 28 February 2014 Pulled in Every Direction Conflicts & How to Avoid Them AUSTLAW 28 February.

Pulled in Every Direction Conflicts & How to Avoid Them AUSTLAW 28 February 2014 Pulled in Every Direction Conflicts & How to Avoid Them AUSTLAW 28 February 2014

What I do know is that conflicts always test our… All those things that together make up our character

So much of ethics is knowing…

Where’s the Line between… & Assertive advocacy & intimidation & Protecting a client & cover-up & Advising clients & collusion & Tactics & abuse of process & Prudent use of facts & lying & Pushing the law to its limits & Creating an injustice & Assertive advocacy & intimidation & Protecting a client & cover-up & Advising clients & collusion & Tactics & abuse of process & Prudent use of facts & lying & Pushing the law to its limits & Creating an injustice “I didn’t lie. I just changed the parameters of my promise.” - Francis Underwood (Kevin Spacey) “House of Cards” “I didn’t lie. I just changed the parameters of my promise.” - Francis Underwood (Kevin Spacey) “House of Cards”

Because sometimes legal practice Involves getting powder on your boots

But to do that effectively You need to know where the line is…

Think on This… Your client has pleaded guilty to sexual interference with a minor and is sentenced to 14 days jail. While awaiting the Crown’s appeal against the leniency of the sentence you discover that your client is HIV+. Do you advise the other side? What are the Rules & other issues to consider? Your client has pleaded guilty to sexual interference with a minor and is sentenced to 14 days jail. While awaiting the Crown’s appeal against the leniency of the sentence you discover that your client is HIV+. Do you advise the other side? What are the Rules & other issues to consider?

Or less traumatically… You acted for Ann and John in their property conveyance and some traffic related matters years ago. Now Ann & John are divorcing and Ann wants you to act for her in the divorce and settlement matter against John. Can you act? You acted for Ann and John in their property conveyance and some traffic related matters years ago. Now Ann & John are divorcing and Ann wants you to act for her in the divorce and settlement matter against John. Can you act?

Hold those thoughts for later

Remember this? Sometimes our duties to those Four Cs conflict with each other

Critical Questions… 1.Fidelity : Am I being true to myself and the duties I owe to the 4 C’s? 2.Honesty 2.Honesty : Am I being honest, or avoiding deceit, in my professional relationships? 3.Propriety : Am I being professional and civil in the way I conduct myself? 4.Competency 4.Competency : Am I able to apply the expertise and the time required to provide the best outcome for those I represent? 1.Fidelity : Am I being true to myself and the duties I owe to the 4 C’s? 2.Honesty 2.Honesty : Am I being honest, or avoiding deceit, in my professional relationships? 3.Propriety : Am I being professional and civil in the way I conduct myself? 4.Competency 4.Competency : Am I able to apply the expertise and the time required to provide the best outcome for those I represent?

Supplementary Questions Consistent with my commitment to justice & service… 1.Who do I owe duties to (& what are they)? 2.Who is going to be affected by what I do? 3.Are any duties in conflict? 4.Can the conflict be resolved? 5.Is my self-interest in play? 6.Which ethical principles are guiding my duties? 7.What do the Rules/Law say? 8.What is my conscience/values telling me? Consistent with my commitment to justice & service… 1.Who do I owe duties to (& what are they)? 2.Who is going to be affected by what I do? 3.Are any duties in conflict? 4.Can the conflict be resolved? 5.Is my self-interest in play? 6.Which ethical principles are guiding my duties? 7.What do the Rules/Law say? 8.What is my conscience/values telling me?

Now back to this… Your client has pleaded guilty to sexual interference with a minor and is sentenced to 14 days jail. While awaiting the Crown’s appeal against the leniency of the sentence you discover that your client is HIV+. Do you advise the other side? What are the Rules & other issues to consider? Your client has pleaded guilty to sexual interference with a minor and is sentenced to 14 days jail. While awaiting the Crown’s appeal against the leniency of the sentence you discover that your client is HIV+. Do you advise the other side? What are the Rules & other issues to consider?

Ethics Calculus Who do I owe duties to? What duties do I owe to each? Are any duties in conflict? Can the conflict be resolved? How? What does the Law/Rules tell us? What do your values tell you? Should they be considered? Would it make any difference if the rules are silent? (What then?!) Would it make any difference if your client had not already pleaded guilty? See R v Butt 2012 ONSC 4326 (19.07.2012) http://canlii.ca/en/on/onsc/doc/2012/2012onsc4326/2012onsc4326.pdf http://canlii.ca/en/on/onsc/doc/2012/2012onsc4326/2012onsc4326.pdf Article: Law Times (Canada) 6 Aug 2012 - http://www.lawtimesnews.com/201208069242/Headline- News/Can-lawyers-reveal-clients-HIV-status Who do I owe duties to? What duties do I owe to each? Are any duties in conflict? Can the conflict be resolved? How? What does the Law/Rules tell us? What do your values tell you? Should they be considered? Would it make any difference if the rules are silent? (What then?!) Would it make any difference if your client had not already pleaded guilty? See R v Butt 2012 ONSC 4326 (19.07.2012) http://canlii.ca/en/on/onsc/doc/2012/2012onsc4326/2012onsc4326.pdf http://canlii.ca/en/on/onsc/doc/2012/2012onsc4326/2012onsc4326.pdf Article: Law Times (Canada) 6 Aug 2012 - http://www.lawtimesnews.com/201208069242/Headline- News/Can-lawyers-reveal-clients-HIV-status

Which Brings Us to CONFLICTS The most common ethics problem lawyers encounter. Breach can give rise to legal and disciplinary action. Main Types Conflict of Duty: When your duties to one party conflicts with another. Typically it can involve a conflict of duties between 2 clients, or a current and former client, or a client and the court. Conflict of Interest: Situations where, typically, the lawyer’s personal interest conflicts with the interests of, or duties to, the client (eg. the lawyer uses information gained during the retainer for personal profit or the lawyer uses their influence to gain a benefit under a will). The most common ethics problem lawyers encounter. Breach can give rise to legal and disciplinary action. Main Types Conflict of Duty: When your duties to one party conflicts with another. Typically it can involve a conflict of duties between 2 clients, or a current and former client, or a client and the court. Conflict of Interest: Situations where, typically, the lawyer’s personal interest conflicts with the interests of, or duties to, the client (eg. the lawyer uses information gained during the retainer for personal profit or the lawyer uses their influence to gain a benefit under a will).

The old NSW Professional Conduct & Practice Rules (pre ASCR) covered it well Statement of Principle for Rules 1-16 (Relations with Clients) fiduciary free of the influence of any interest which may conflict with a client's best interests confidentiality give their clients the benefit of all information relevant to their clients' affairs of which they have knowledge Practitioners should serve their clients competently and diligently. They should be acutely aware of the fiduciary nature of the relationship with their clients, and always deal with their clients fairly, free of the influence of any interest which may conflict with a client's best interests. Practitioners should maintain the confidentiality of their clients' affairs, but give their clients the benefit of all information relevant to their clients' affairs of which they have knowledge. Practitioners should not, in the service of their clients, engage in, or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law. Statement of Principle for Rules 1-16 (Relations with Clients) fiduciary free of the influence of any interest which may conflict with a client's best interests confidentiality give their clients the benefit of all information relevant to their clients' affairs of which they have knowledge Practitioners should serve their clients competently and diligently. They should be acutely aware of the fiduciary nature of the relationship with their clients, and always deal with their clients fairly, free of the influence of any interest which may conflict with a client's best interests. Practitioners should maintain the confidentiality of their clients' affairs, but give their clients the benefit of all information relevant to their clients' affairs of which they have knowledge. Practitioners should not, in the service of their clients, engage in, or assist, conduct that is calculated to defeat the ends of justice or is otherwise in breach of the law.

Rules – ASCR “Fundamental Duties” PARAMOUNT DUTY TO THE COURT AND THE ADMINISTRATION OF JUSTICE 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. 3.1A 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 ETHICAL DUTIES 4.1A solicitor must also: act in the best interests of a client 4.1.1act in the best interests of a client in any matter in which the solicitor represents the client; 4.1.2be honest and courteous in all dealings in the course of legal practice; 4.1.3deliver legal services competently, diligently and as promptly as reasonably possible; avoid any compromise to their integrity and professional independence 4.1.4avoid any compromise to their integrity and professional independence; and 4.1.5comply with these Rules and the law. PARAMOUNT DUTY TO THE COURT AND THE ADMINISTRATION OF JUSTICE 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. 3.1A 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 ETHICAL DUTIES 4.1A solicitor must also: act in the best interests of a client 4.1.1act in the best interests of a client in any matter in which the solicitor represents the client; 4.1.2be honest and courteous in all dealings in the course of legal practice; 4.1.3deliver legal services competently, diligently and as promptly as reasonably possible; avoid any compromise to their integrity and professional independence 4.1.4avoid any compromise to their integrity and professional independence; and 4.1.5comply with these Rules and the law.

LIV LIV GENERAL PRINCIPLES OF PROFESSIONAL CONDUCT GENERAL PRINCIPLES OF PROFESSIONAL CONDUCT (A) Object of Rules The object of these rules is to ensure that each practitioner: (i) acts in accordance with the general principles of professional conduct; (ii) discharges that practitioner’s obligations in relation to the administration of justice; administration of justice; and (iii) supplies to clients legal services of the highest standard unaffected by self interest unaffected by self interest. (B) Serving the interests of Justice and complying with the Law in the course of engaging in legal practice A practitioner must not, in the course of engaging in legal practice, engage in, or assist, conduct which is: dishonestdiscreditable (i) dishonest or otherwise discreditable to a practitioner; prejudicial to the administration of justice; (ii) prejudicial to the administration of justice; or diminish public confidence (iii) likely to diminish public confidence in the legal profession or in the bring the legal profession into administration of justice or otherwise bring the legal profession intodisrepute

fiduciary duty avoid any conflict between his duty to his client and his own interests endeavours to serve two masters “It is well settled that a solicitor has a fiduciary duty to his or her client. That duty carries with it two presently relevant responsibilities. The first is the obligation to avoid any conflict between his duty to his client and his own interests – he must not make a profit, or secure a benefit, at his client’s expense. The second arises when he endeavours to serve two masters and requires …full disclosure to both. Clarke JA Clark v Barter (1989) NSW Conv 55 – 483 fiduciary duty avoid any conflict between his duty to his client and his own interests endeavours to serve two masters “It is well settled that a solicitor has a fiduciary duty to his or her client. That duty carries with it two presently relevant responsibilities. The first is the obligation to avoid any conflict between his duty to his client and his own interests – he must not make a profit, or secure a benefit, at his client’s expense. The second arises when he endeavours to serve two masters and requires …full disclosure to both. Clarke JA Clark v Barter (1989) NSW Conv 55 – 483

ASCR: 3 Types of Conflict FORMER CONFLICTS CONCERNING FORMER CLIENTS (LIV R4) 10.1A solicitor and law practice must avoid conflicts between the duties owed to current and former clients, except as permitted by Rule 10.2. CURRENT CONFLICT OF DUTIES CONCERNING CURRENT CLIENTS (LIV R8) 11.1A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients, except where permitted by this Rule. OWN INTERESTS CONFLICT CONCERNING A SOLICITOR’S OWN INTERESTS (LIV R9-11) 12.1A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this Rule. FORMER CONFLICTS CONCERNING FORMER CLIENTS (LIV R4) 10.1A solicitor and law practice must avoid conflicts between the duties owed to current and former clients, except as permitted by Rule 10.2. CURRENT CONFLICT OF DUTIES CONCERNING CURRENT CLIENTS (LIV R8) 11.1A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients, except where permitted by this Rule. OWN INTERESTS CONFLICT CONCERNING A SOLICITOR’S OWN INTERESTS (LIV R9-11) 12.1A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this Rule.

Based in Fiduciary Principle

Conflict Rules - Purpose undivided loyalty Designed to promote undivided loyalty by: Ensuring the interests of the lawyer don’t conflict with client’s interests Prohibiting the lawyer from profiting from his/her position as a lawyer, other than via their reasonable fees. It also explains why lawyers should not accept a retainer where there is reason to believe they may be required to give evidence material to the determination of a contested issue. undivided loyalty Designed to promote undivided loyalty by: Ensuring the interests of the lawyer don’t conflict with client’s interests Prohibiting the lawyer from profiting from his/her position as a lawyer, other than via their reasonable fees. It also explains why lawyers should not accept a retainer where there is reason to believe they may be required to give evidence material to the determination of a contested issue.

Conflict Rules - Purpose Also designed to promote public confidence in the legal profession & process and avoid the appearance of impropriety. “…it is in the best interests of the community, the legal profession and the attainment of justice that lawyers do not represent clients …where there could be a reasonably held perception that they are compromising the integrity of the profession for the pursuit of personal advantage arising from their representation, whatever may be the ultimate truth of the facts which underlie that perception.” Lockhart J, ASC v Bell (1991) 104 ALR 125 at 129 Also designed to promote public confidence in the legal profession & process and avoid the appearance of impropriety. “…it is in the best interests of the community, the legal profession and the attainment of justice that lawyers do not represent clients …where there could be a reasonably held perception that they are compromising the integrity of the profession for the pursuit of personal advantage arising from their representation, whatever may be the ultimate truth of the facts which underlie that perception.” Lockhart J, ASC v Bell (1991) 104 ALR 125 at 129

Balancing Act Conflicts are commonly resolved via Client consent, or Injunction/Restraint, or Lawyer withdrawal When faced with an application to restrain a lawyer, Courts need to balance two public interests: The interest in the client having full confidence in their lawyer, including the protection of confidences, and The right of clients to retain the lawyer of their choice. Conflicts are commonly resolved via Client consent, or Injunction/Restraint, or Lawyer withdrawal When faced with an application to restrain a lawyer, Courts need to balance two public interests: The interest in the client having full confidence in their lawyer, including the protection of confidences, and The right of clients to retain the lawyer of their choice.

Balancing Act “It is well established that ordinarily litigants are entitled to solicitors and counsel of their choice and only where it is clearly necessary to do so will the Court make an order that would interfere with that right.” Newnes M, Zalfen v Gates [2006] WASC 296 at para 61-62 “It is well established that ordinarily litigants are entitled to solicitors and counsel of their choice and only where it is clearly necessary to do so will the Court make an order that would interfere with that right.” Newnes M, Zalfen v Gates [2006] WASC 296 at para 61-62

Balancing Act The jurisdiction of the Court to restrain a lawyer is generally founded on one or more of these three grounds: The protection of confidential information; Restraint from a breach of fiduciary duties in the context of a conflict of interest; To control the conduct of solicitors as officers of the Court and to ensure the administration of justice is not brought into disrepute. Steytler J, Newman v Phillips Fox (a firm) (1999) 21 WAR 309 at [18] The jurisdiction of the Court to restrain a lawyer is generally founded on one or more of these three grounds: The protection of confidential information; Restraint from a breach of fiduciary duties in the context of a conflict of interest; To control the conduct of solicitors as officers of the Court and to ensure the administration of justice is not brought into disrepute. Steytler J, Newman v Phillips Fox (a firm) (1999) 21 WAR 309 at [18]

Balancing Act But, as Brereton J noted: “The jurisdiction is to be regarded as exceptional and is to be exercised with caution [Black v Taylor; Grimwade v Meagher; Bowen v Stott]. Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.” Kallinicos v Hunt But, as Brereton J noted: “The jurisdiction is to be regarded as exceptional and is to be exercised with caution [Black v Taylor; Grimwade v Meagher; Bowen v Stott]. Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause.” Kallinicos v Hunt

Current Client Conflicts – LIV 8.2 A practitioner must avoid conflict of interest between two or more clients of the practitioner. 8.3 A practitioner who, or whose firm intends to act for a party, to any matter where the practitioner is also intending to accept instructions to act for another party to the matter must be satisfied, before accepting an engagement to act, that each party is aware that the practitioner is intending to act for the others and consents to the practitioner so acting in the knowledge that the practitioner: (a) may, thereby, be prevented from - (i) disclosing to each party all information relevant to the matter within the practitioner's knowledge; or (ii) giving advice to one party which is contrary to the interests of another; and (b) will cease to act for all parties if the practitioner would, otherwise, be obliged to act in a manner contrary to the interests of one or more of them. 8.4 If a practitioner who is acting for more than one party to any matter determines that the practitioner cannot continue to act for all of the parties without acting in a manner contrary to the interests of one or more of them, the practitioner must immediately cease to act for all parties. 8.2 A practitioner must avoid conflict of interest between two or more clients of the practitioner. 8.3 A practitioner who, or whose firm intends to act for a party, to any matter where the practitioner is also intending to accept instructions to act for another party to the matter must be satisfied, before accepting an engagement to act, that each party is aware that the practitioner is intending to act for the others and consents to the practitioner so acting in the knowledge that the practitioner: (a) may, thereby, be prevented from - (i) disclosing to each party all information relevant to the matter within the practitioner's knowledge; or (ii) giving advice to one party which is contrary to the interests of another; and (b) will cease to act for all parties if the practitioner would, otherwise, be obliged to act in a manner contrary to the interests of one or more of them. 8.4 If a practitioner who is acting for more than one party to any matter determines that the practitioner cannot continue to act for all of the parties without acting in a manner contrary to the interests of one or more of them, the practitioner must immediately cease to act for all parties.

Current Client Conflicts - ASCR A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients 11.1 A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients, except where permitted by this Rule. must not act, except where permitted by Rule 11.3. 11.2If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the clients’ interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act, except where permitted by Rule 11.3. 11.3Where a solicitor or law practice seeks to act in the circumstances specified in Rule 11.2, the solicitor may, subject always to each solicitor discharging their duty to act in the best interests of their client, only act if each client: 11.3.1is aware that the solicitor or law practice is also acting for another client; and 11.3.2has given informed consent to the solicitor or law practice so acting. A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients 11.1 A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients, except where permitted by this Rule. must not act, except where permitted by Rule 11.3. 11.2If a solicitor or a law practice seeks to act for two or more clients in the same or related matters where the clients’ interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the solicitor or law practice must not act, except where permitted by Rule 11.3. 11.3Where a solicitor or law practice seeks to act in the circumstances specified in Rule 11.2, the solicitor may, subject always to each solicitor discharging their duty to act in the best interests of their client, only act if each client: 11.3.1is aware that the solicitor or law practice is also acting for another client; and 11.3.2has given informed consent to the solicitor or law practice so acting.

Informed consent (according to the ASCR commentary – LCA version) Informed consent means: consent given in the knowledge that there is a conflict between the parties and that as a result, the solicitor may be disabled from disclosing to each party the full knowledge which he possesses as to the transaction, or may be disabled from giving advice to one party which conflicts with the interests of the other. - Privy Council [Clark Boyce v Mouat [1993] 3 NZLR 641, 646]. Informed consent focuses on the understanding of the client, meaning that the conversation between solicitor and client will vary according to the requirements of the client. It is the solicitor, not the client, who is most likely to be alert to the possibility of conflicts of interest and their consequences. A client’s informed consent, therefore, is premised upon the solicitor making the client aware of all relevant matters, including (but not limited to): the existence or potential existence of a conflict; the potential disadvantages of the conflict; any advantages of the conflict, to that client or any other client; the fact that alternative representation is likely to be available; and the manner in which the solicitor intends managing the conflict of interest. Moreover, especially in the case of an unsophisticated client, a prudent solicitor will urge the client to seek independent (legal) advice on the matter. Informed consent means: consent given in the knowledge that there is a conflict between the parties and that as a result, the solicitor may be disabled from disclosing to each party the full knowledge which he possesses as to the transaction, or may be disabled from giving advice to one party which conflicts with the interests of the other. - Privy Council [Clark Boyce v Mouat [1993] 3 NZLR 641, 646]. Informed consent focuses on the understanding of the client, meaning that the conversation between solicitor and client will vary according to the requirements of the client. It is the solicitor, not the client, who is most likely to be alert to the possibility of conflicts of interest and their consequences. A client’s informed consent, therefore, is premised upon the solicitor making the client aware of all relevant matters, including (but not limited to): the existence or potential existence of a conflict; the potential disadvantages of the conflict; any advantages of the conflict, to that client or any other client; the fact that alternative representation is likely to be available; and the manner in which the solicitor intends managing the conflict of interest. Moreover, especially in the case of an unsophisticated client, a prudent solicitor will urge the client to seek independent (legal) advice on the matter.

Current Client Conflicts - ASCR 11.4In addition to the requirements of Rule 11.3, where a solicitor or law practice is in possession of confidential information of a client (the first client) which might reasonably be concluded to be material to another client’s current matter and detrimental to the interests of the first client if disclosed, there is a conflict of duties and the solicitor and the solicitor’s law practice must not act for the other client, except as follows: 11.4.1a solicitor may act where there is a conflict of duties arising from the possession of confidential information, where each client has given informed consent to the solicitor acting for another client; information barrier 11.4.2a law practice (and the solicitors concerned) may act where there is a conflict of duties arising from the possession of confidential information where an effective information barrier has been established. 11.4In addition to the requirements of Rule 11.3, where a solicitor or law practice is in possession of confidential information of a client (the first client) which might reasonably be concluded to be material to another client’s current matter and detrimental to the interests of the first client if disclosed, there is a conflict of duties and the solicitor and the solicitor’s law practice must not act for the other client, except as follows: 11.4.1a solicitor may act where there is a conflict of duties arising from the possession of confidential information, where each client has given informed consent to the solicitor acting for another client; information barrier 11.4.2a law practice (and the solicitors concerned) may act where there is a conflict of duties arising from the possession of confidential information where an effective information barrier has been established. But there’s something missing! In its advice to Law Societies in Oct 2012 the LCA confirms that Rule 11.4 is missing ‘and’. Why not “or” as in ASCR 10?

BEWARE Information barriers – but BEWARE The Law Society of New South Wales, in consultation with the Law Institute of Victoria, has issued Information Barrier Guidelines, which solicitors should consult. The Guidelines have been adopted by the law societies of New South Wales, Victoria and Queensland but are confined in their application to situations covered by Rule 10, namely where a law practice has a conflict involving its duty to preserve the confidential information of a former client. The Guidelines do not address the use of information barriers in concurrent matters, but the obligation to protect the confidential information of each concurrent client is, in principle, no different to the obligation to protect the confidential information of a former client.* It is therefore necessary to adapt the Guidelines somewhat in applying them to the situation of concurrent clients. *See UTi (Aust.) Pty Ltd v Partners of Piper Alderman [2008] NSWSC 219, at para [39]-[45] where Barrett J applied the principle in former client cases to a situation of a potential conflict between concurrent clients. LCA Commentary to Rule 11, p18 The Law Society of New South Wales, in consultation with the Law Institute of Victoria, has issued Information Barrier Guidelines, which solicitors should consult. The Guidelines have been adopted by the law societies of New South Wales, Victoria and Queensland but are confined in their application to situations covered by Rule 10, namely where a law practice has a conflict involving its duty to preserve the confidential information of a former client. The Guidelines do not address the use of information barriers in concurrent matters, but the obligation to protect the confidential information of each concurrent client is, in principle, no different to the obligation to protect the confidential information of a former client.* It is therefore necessary to adapt the Guidelines somewhat in applying them to the situation of concurrent clients. *See UTi (Aust.) Pty Ltd v Partners of Piper Alderman [2008] NSWSC 219, at para [39]-[45] where Barrett J applied the principle in former client cases to a situation of a potential conflict between concurrent clients. LCA Commentary to Rule 11, p18 BUT: Concurrent client conflicts raise issues of loyalty as well as confidentiality.

Current Client Conflicts - ASCR 11.5 If a solicitor or a law practice acts for more than one client in a matter and, during the course of the conduct of that matter, an actual conflict arises between the duties owed to two or more of those clients, the solicitor or law practice may only continue to act for one of the clients (or a group of clients between whom there is no conflict) provided that the duty of confidentiality to other client(s) is not put at risk and the parties have given informed consent.

A complicating factor – The Immortal Duty What’s the one duty that survives the retainer….and lives forever?

The Immortal Duty So… With the ending of the retainer the issue is usually one of confidentiality rather than conflict. (nb. the Victorians still have regard to ongoing loyalties. See Spincode) So… With the ending of the retainer the issue is usually one of confidentiality rather than conflict. (nb. the Victorians still have regard to ongoing loyalties. See Spincode)

The Immortal Duty And don’t forget that not all confidential information is found in your files. “Getting-to-know-you” factors include your impressions, knowledge of personalities, strengths/weaknesses, tactics etc (More of an issue in family & criminal matters) And don’t forget that not all confidential information is found in your files. “Getting-to-know-you” factors include your impressions, knowledge of personalities, strengths/weaknesses, tactics etc (More of an issue in family & criminal matters)

The Immortal Duty Magro v Magro (1989) FLC 92-005 of impressions of the wife's personality gained after many hours of confidence, which could be exploited by a skilful advocate “…it is reasonable to infer that Mr Byrne, by dint of his lengthy retainer, is in possession of at least some privileged material belonging to the wife which could be put to good use by the husband. This might only consist of impressions of the wife's personality gained after many hours of confidence, which could be exploited by a skilful advocate presented with those impressions. In these circumstances the appearance of justice will, to borrow Bryson J's words, not long "survive any general impression that lawyers can readily change sides.” Rourke J at 38 The injunction was granted. Magro v Magro (1989) FLC 92-005 of impressions of the wife's personality gained after many hours of confidence, which could be exploited by a skilful advocate “…it is reasonable to infer that Mr Byrne, by dint of his lengthy retainer, is in possession of at least some privileged material belonging to the wife which could be put to good use by the husband. This might only consist of impressions of the wife's personality gained after many hours of confidence, which could be exploited by a skilful advocate presented with those impressions. In these circumstances the appearance of justice will, to borrow Bryson J's words, not long "survive any general impression that lawyers can readily change sides.” Rourke J at 38 The injunction was granted.

But… Insofar as reliance is placed on the "getting to know you" principle, a moment's consideration of the way that litigation is conducted in Australia shows that this cannot be accepted too literally, especially in relation to counsel. There are many bodies such as Commonwealth and State government entities, banks, insurers, media companies and many others which are constantly engaged in litigation. Counsel retained to act on behalf of such bodies inevitably acquire information, not confidential information in the strict sense, but experience as to the corporate culture of the clients, their internal policies, the way they deal with litigation, tactics, the personalities of important decision-makers and so forth. I do not accept that general experience of that kind would impose what presumably on the respondent's argument would be lifetime restraints on counsel from acting against such a body. Heerey J in Mintel International Group v Mintel (Australia) Pty Ltd (2000) 181 ALR 78 at 44 Insofar as reliance is placed on the "getting to know you" principle, a moment's consideration of the way that litigation is conducted in Australia shows that this cannot be accepted too literally, especially in relation to counsel. There are many bodies such as Commonwealth and State government entities, banks, insurers, media companies and many others which are constantly engaged in litigation. Counsel retained to act on behalf of such bodies inevitably acquire information, not confidential information in the strict sense, but experience as to the corporate culture of the clients, their internal policies, the way they deal with litigation, tactics, the personalities of important decision-makers and so forth. I do not accept that general experience of that kind would impose what presumably on the respondent's argument would be lifetime restraints on counsel from acting against such a body. Heerey J in Mintel International Group v Mintel (Australia) Pty Ltd (2000) 181 ALR 78 at 44

So back to this one… You acted for Ann and John in their property conveyance and some traffic related matters years ago. Now Ann wants you to act for her in divorce and settlement matters against John. Can you act? Basically a former client conflict Duties to former client – confidentiality See House v Altimas [2012] FamCA 625 You acted for Ann and John in their property conveyance and some traffic related matters years ago. Now Ann wants you to act for her in divorce and settlement matters against John. Can you act? Basically a former client conflict Duties to former client – confidentiality See House v Altimas [2012] FamCA 625

But before we get to former client conflicts… Does the nature of client confidentiality have any ramifications for concurrent client issues?

Strict duty “It is a duty to keep the information confidential, not merely to take all reasonable steps to do so. Moreover, it is not merely a duty to not to communicate the information to a third party. It is a duty not to misuse it, that is to say, without the consent of the former client to make any use of it or to cause any use to be made of it by others otherwise than for his benefit.” Lord Millet Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 “It is a duty to keep the information confidential, not merely to take all reasonable steps to do so. Moreover, it is not merely a duty to not to communicate the information to a third party. It is a duty not to misuse it, that is to say, without the consent of the former client to make any use of it or to cause any use to be made of it by others otherwise than for his benefit.” Lord Millet Prince Jefri Bolkiah v KPMG [1999] 2 AC 222

So what about… Solicitor Fred Friendly acts for Big Bucks Finance Inc mostly in employment and insurance matters. Another of his clients advises Fred that he is in the process of purchasing Big Bucks and wants to retain him to handle the legals. BUT: Fred knows that Big Bucks is in financial difficulty and would be a very risky venture. What are Fred’s duties to each of these clients? Can he act for both? Solicitor Fred Friendly acts for Big Bucks Finance Inc mostly in employment and insurance matters. Another of his clients advises Fred that he is in the process of purchasing Big Bucks and wants to retain him to handle the legals. BUT: Fred knows that Big Bucks is in financial difficulty and would be a very risky venture. What are Fred’s duties to each of these clients? Can he act for both?

Rules - LIV 4. Acting Against a Former Client A practitioner must not accept an engagement to act for another person in any matter against, or in opposition to, the interest of a person ("the former client"): (a) for whom the practitioner (or, in the case of a practitioner not being a firm, the practitioner's current or former firm) or the former firm of a partner, director or employee of the practitioner or of the practitioner's firm has acted previously and has thereby acquired information confidentialmaterial personally, confidential to the former client and material to the matter; and (b) if the former client might reasonably conclude that there is a real information will be used to the former client's detriment possibility the information will be used to the former client's detriment. 4. Acting Against a Former Client A practitioner must not accept an engagement to act for another person in any matter against, or in opposition to, the interest of a person ("the former client"): (a) for whom the practitioner (or, in the case of a practitioner not being a firm, the practitioner's current or former firm) or the former firm of a partner, director or employee of the practitioner or of the practitioner's firm has acted previously and has thereby acquired information confidentialmaterial personally, confidential to the former client and material to the matter; and (b) if the former client might reasonably conclude that there is a real information will be used to the former client's detriment possibility the information will be used to the former client's detriment.

Rules - ASCR 10.Conflicts concerning former clients 10.1 A solicitor and law practice must avoid conflicts between the duties owed to current and former clients, except as permitted by Rule 10.2. confidential material to the matterdetrimental 10.2 A solicitor or law practice who or which is in possession of confidential information of a former client where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter UNLESS: 10.2.1 the former client has given informed written consent to the solicitor or law practice so acting; or 10.2.2 an effective information barrier has been established. 10.Conflicts concerning former clients 10.1 A solicitor and law practice must avoid conflicts between the duties owed to current and former clients, except as permitted by Rule 10.2. confidential material to the matterdetrimental 10.2 A solicitor or law practice who or which is in possession of confidential information of a former client where that information might reasonably be concluded to be material to the matter of another client and detrimental to the interests of the former client if disclosed, must not act for the current client in that matter UNLESS: 10.2.1 the former client has given informed written consent to the solicitor or law practice so acting; or 10.2.2 an effective information barrier has been established.

Then there’s an annoying presumption What’s in your head is in everybody’s head. So your whole firm is infected. AND Any new firm you might move to. What’s in your head is in everybody’s head. So your whole firm is infected. AND Any new firm you might move to.

The Risk Former client may seek an injunction to prevent your new employer from acting on the basis that your new employer: – Possesses confidential information that is: – Material to the current matter; AND – There is a reasonable potential for this information to be used to their detriment. – NB The risk of disclosure must be real - but not substantial or inevitable Prince Jefri Bolkiah v KPMG [1999] 2 WLR 215 Former client may seek an injunction to prevent your new employer from acting on the basis that your new employer: – Possesses confidential information that is: – Material to the current matter; AND – There is a reasonable potential for this information to be used to their detriment. – NB The risk of disclosure must be real - but not substantial or inevitable Prince Jefri Bolkiah v KPMG [1999] 2 WLR 215

Can you rebut the presumption? Perhaps – but you need to show that your firm has adequately quarantined any confidential information How? Robust, existing Chinese Wall (Information Barrier) policies! See LIV/NSWLS/QLS Guidelines Perhaps – but you need to show that your firm has adequately quarantined any confidential information How? Robust, existing Chinese Wall (Information Barrier) policies! See LIV/NSWLS/QLS Guidelines

Chinese Walls Policies include the physical separation of the various departments in order to insulate them from each other An educational program, normally recurring, to emphasise the importance of not divulging confidential information strict and carefully defined procedures for dealing with a situation where it is felt the ‘wall’ should be crossed, and well maintained records of such occurrences monitoring by compliance officers of the effectiveness of the wall Disciplinary sanctions for breaches of the wall. APT v Optus [2005] NSWSC 550 the physical separation of the various departments in order to insulate them from each other An educational program, normally recurring, to emphasise the importance of not divulging confidential information strict and carefully defined procedures for dealing with a situation where it is felt the ‘wall’ should be crossed, and well maintained records of such occurrences monitoring by compliance officers of the effectiveness of the wall Disciplinary sanctions for breaches of the wall. APT v Optus [2005] NSWSC 550

But Beware Information barriers aren’t as robust as we think APT v Optus [2007] NSWSC 350. Information barriers aren’t as robust as we think APT v Optus [2007] NSWSC 350.

Client consent Can sometimes “cure” a conflict as the rules are based on fiduciary principles that aim to benefit the client by ensuring the lawyer’s undivided loyalty. Hence clients can waive the right. BUT BUT: Consent must be “Fully Informed”: Whether consent meets this standard is a matter of fact. Yet “valid client consent is almost invariably premised upon the lawyer having made full, frank and complete disclosure to the client of the nature and extent of the lawyer’s interest in the proposed dealing or transaction, ideally expressed in writing.” (G. Dal Pont “Riley Solicitors Manual” 6005.10) Can sometimes “cure” a conflict as the rules are based on fiduciary principles that aim to benefit the client by ensuring the lawyer’s undivided loyalty. Hence clients can waive the right. BUT BUT: Consent must be “Fully Informed”: Whether consent meets this standard is a matter of fact. Yet “valid client consent is almost invariably premised upon the lawyer having made full, frank and complete disclosure to the client of the nature and extent of the lawyer’s interest in the proposed dealing or transaction, ideally expressed in writing.” (G. Dal Pont “Riley Solicitors Manual” 6005.10)

“[The disclosure] must be a conscientious disclosure of all material circumstances, and everything known to him relating to the proposed transaction which might influence the conduct of the client or anybody from whom he might seek advice. To disclose less than all that is material may positively mislead. Thus for a solicitor to merely disclose that he has an interest, without identifying the interest, may serve only to mislead the client into an enhanced confidence that the solicitor will be in a position to better protect the client’s interest.” Street CJ Law Society of NSW v Harvey [1976] 2 NSWLR 154 at 170 “[The disclosure] must be a conscientious disclosure of all material circumstances, and everything known to him relating to the proposed transaction which might influence the conduct of the client or anybody from whom he might seek advice. To disclose less than all that is material may positively mislead. Thus for a solicitor to merely disclose that he has an interest, without identifying the interest, may serve only to mislead the client into an enhanced confidence that the solicitor will be in a position to better protect the client’s interest.” Street CJ Law Society of NSW v Harvey [1976] 2 NSWLR 154 at 170

Self Interest In situations where the lawyer’s own interest is involved it is prudent to insist that the client seeks independent legal advice before continuing to act. The purpose is to ensure that the lawyer’s interests are neither preferred nor seen to be preferred over those of the client.

Conflicts concerning solicitor’s own interests - LIV 9. Avoiding Conflict of Interest (where practitioner's own interest involved) 9.1 A practitioner must not, in any dealings with a client - 9.1.1 allow an interest of the practitioner or an associate of the practitioner to conflict with the client's interest; 9.1.2 exercise any undue influence intended to dispose the client to benefit the practitioner or an associate of the practitioner in excess of the practitioner's fair remuneration for the legal services provided to the client; 9.2 A practitioner must not accept instructions to act or continue to act for a person in any matter when the practitioner is, or becomes, aware that the person's interest in the matter is, or would be, in conflict with the practitioner's own interest or the interest of an associate. 9. Avoiding Conflict of Interest (where practitioner's own interest involved) 9.1 A practitioner must not, in any dealings with a client - 9.1.1 allow an interest of the practitioner or an associate of the practitioner to conflict with the client's interest; 9.1.2 exercise any undue influence intended to dispose the client to benefit the practitioner or an associate of the practitioner in excess of the practitioner's fair remuneration for the legal services provided to the client; 9.2 A practitioner must not accept instructions to act or continue to act for a person in any matter when the practitioner is, or becomes, aware that the person's interest in the matter is, or would be, in conflict with the practitioner's own interest or the interest of an associate.

Conflicts concerning solicitor’s own interests - ASCR 12.1A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this Rule. 12.2A solicitor must not exercise any undue influence intended to dispose the client to benefit the solicitor in excess of the solicitor’s fair remuneration for legal services provided to the client. 12.3A solicitor must not borrow any money, nor assist an associate to borrow money, from: 12.3.1a client of the solicitor or of the solicitor’s law practice; or 12.3.2a former client of the solicitor or of the solicitor’s law practice who has indicated a continuing reliance upon the advice of the solicitor or of the solicitor’s law practice in relation to the investment of money,

Unless UNLESS the client is: (i)an Authorised Deposit-taking Institution; (ii)a trustee company; (iii)the responsible entity of a managed investment scheme registered under Chapter 5C of the Corporations Act 2001 (Cth) or a custodian for such a scheme; (iv)an associate of the solicitor and the solicitor is able to discharge the onus of proving that a full written disclosure was made to the client and that the client’s interests are protected in the circumstances, whether by legal representation or otherwise; or (v)the employer of the solicitor. See LIV r 11.2

ScopeScope Any gain by the solicitor beyond reasonable remuneration. Again the fiduciary principle of independent, undivided loyalty is being preserved. Typical issues: Borrowing from a client Lending to a client Purchasing/selling from/to a client Making a secret profit/referral fee from the representation Receiving any other benefit apart from reasonable fee Any gain by the solicitor beyond reasonable remuneration. Again the fiduciary principle of independent, undivided loyalty is being preserved. Typical issues: Borrowing from a client Lending to a client Purchasing/selling from/to a client Making a secret profit/referral fee from the representation Receiving any other benefit apart from reasonable fee

Another Presumption “The reason why the presumption applies…is that…solicitors are trusted and confided in by their…clients to give them conscientious and disinterested advice on matters which profoundly affect…their material well-being. It is natural to presume that out of that trust and confidence grows influence.” Nourse LJ Goldsworthy v Brickell [1987] All ER 853 at 868 “The reason why the presumption applies…is that…solicitors are trusted and confided in by their…clients to give them conscientious and disinterested advice on matters which profoundly affect…their material well-being. It is natural to presume that out of that trust and confidence grows influence.” Nourse LJ Goldsworthy v Brickell [1987] All ER 853 at 868

Another Rebuttal The lawyer who has received a benefit beyond their reasonable fee would need to satisfy a court that the benefit was a result of a fully informed decision by a person who had the capacity and freedom of judgment necessary to confer the benefit. This would invariably require independent legal advice (see NSW Solicitors’ Rules 11.2 – 11.3) The lawyer who has received a benefit beyond their reasonable fee would need to satisfy a court that the benefit was a result of a fully informed decision by a person who had the capacity and freedom of judgment necessary to confer the benefit. This would invariably require independent legal advice (see NSW Solicitors’ Rules 11.2 – 11.3)

Exceptions include referral fees 12.4.3receiving a financial benefit from a third party in relation to any dealing where the solicitor represents a client, or from another service provider to whom a client has been referred by the solicitor, provided that the solicitor advises the client: the nature of that commission or benefit; (i)that a commission or benefit is or may be payable to the solicitor in respect of the dealing or referral and the nature of that commission or benefit; client may refuse any referral (ii)that the client may refuse any referral, and informed consent the client has given informed consent to the commission or benefit received or which may be received. 12.4.4acting for a client in any dealing in which a financial benefit may be payable to a third party for referring the client, provided that the solicitor has first disclosed the payment or financial benefit to the client. Referral fees remain prohibited in WA – and were the most contested issue in drafting the ASCR.

Sexual Relationships with Clients Issues?

No specific Conduct Rules Don’t! But – Don’t! It can represent an abuse of power/dependency. Clients are often vulnerable and the lawyer’s role is one of protection. It can represent an abuse of power/dependency. Clients are often vulnerable and the lawyer’s role is one of protection. The client may be in fear of the lawyer ceasing to represent them. The client may be in fear of the lawyer ceasing to represent them. Blurring of personal/professional boundaries can impact on legal professional privilege and confidentiality - LPCB v Morel (2004) 88 SASR 401. Blurring of personal/professional boundaries can impact on legal professional privilege and confidentiality - LPCB v Morel (2004) 88 SASR 401. Compromises objectivity & independence and is likely an abuse of the fiduciary relationship. Compromises objectivity & independence and is likely an abuse of the fiduciary relationship. Don’t! But – Don’t! It can represent an abuse of power/dependency. Clients are often vulnerable and the lawyer’s role is one of protection. It can represent an abuse of power/dependency. Clients are often vulnerable and the lawyer’s role is one of protection. The client may be in fear of the lawyer ceasing to represent them. The client may be in fear of the lawyer ceasing to represent them. Blurring of personal/professional boundaries can impact on legal professional privilege and confidentiality - LPCB v Morel (2004) 88 SASR 401. Blurring of personal/professional boundaries can impact on legal professional privilege and confidentiality - LPCB v Morel (2004) 88 SASR 401. Compromises objectivity & independence and is likely an abuse of the fiduciary relationship. Compromises objectivity & independence and is likely an abuse of the fiduciary relationship.

And not with the Other Side either R v Szabo [2000] QCA 194 Failure by defense counsel to disclose a prior de facto relationship with the prosecutor resulted in a retrial on the basis of perceived unfairness. R v Szabo [2000] QCA 194 Failure by defense counsel to disclose a prior de facto relationship with the prosecutor resulted in a retrial on the basis of perceived unfairness.

The Principle Behind the Law is… “No man can serve two masters” Lawyers must give full and undivided representation to their clients and this becomes impossible if the interests of the two (or more) clients actually or potentially clash. Blackwell v Barroile Pty Ltd [1994] 51 FCR 347 “No man can serve two masters” Lawyers must give full and undivided representation to their clients and this becomes impossible if the interests of the two (or more) clients actually or potentially clash. Blackwell v Barroile Pty Ltd [1994] 51 FCR 347

PonderablesPonderables

Can I breach confidence if… …my client threatens their ex – Or their boss Or their neighbour (or me!) harm? with harm? …my client threatens their ex – Or their boss Or their neighbour (or me!) harm? with harm?

Exceptions to Confidentiality Exceptions to Confidentiality LIV rule 3 3.1.1 the client authorises disclosure; 3.1.2 the practitioner is compelled by law to disclose; 3.1.3 the practitioner discloses information in circumstances in which the law would probably compel its disclosure, despite a client's claim of legal professional privilege, and for the sole purpose of avoiding the probable commission or concealment of a serious criminal offence; 3.1.4 the information has lost its confidentiality; or 3.1.5 the practitioner obtains the information from another person who is not bound by the confidentiality owed by the practitioner to the client and who does not give the information confidentially to the practitioner. 3.1.1 the client authorises disclosure; 3.1.2 the practitioner is compelled by law to disclose; 3.1.3 the practitioner discloses information in circumstances in which the law would probably compel its disclosure, despite a client's claim of legal professional privilege, and for the sole purpose of avoiding the probable commission or concealment of a serious criminal offence; 3.1.4 the information has lost its confidentiality; or 3.1.5 the practitioner obtains the information from another person who is not bound by the confidentiality owed by the practitioner to the client and who does not give the information confidentially to the practitioner.

ASCR 9.2 A solicitor may disclose confidential client information if: 9.2.1 the client expressly or impliedly authorises disclosure; 9.2.2 the solicitor is permitted or is compelled by law to disclose; 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 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. 9.2 A solicitor may disclose confidential client information if: 9.2.1 the client expressly or impliedly authorises disclosure; 9.2.2 the solicitor is permitted or is compelled by law to disclose; 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 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.

Before you act, consider  Is my client capable of carrying out the threat? Any history of violent behaviour or previous threats should be considered.  Other than the current outburst is my client acting or thinking irrationally?  Does my client have access to weapons or other means of carrying out the threat?  Is my client responsive to the rational advice being provided?  Do I believe the threat may be real? Then ensure any disclosure is limited and everything is well documented.  Is my client capable of carrying out the threat? Any history of violent behaviour or previous threats should be considered.  Other than the current outburst is my client acting or thinking irrationally?  Does my client have access to weapons or other means of carrying out the threat?  Is my client responsive to the rational advice being provided?  Do I believe the threat may be real? Then ensure any disclosure is limited and everything is well documented.

Firing a client 1 You are 8 weeks into a trial and your client has maintained that they were nowhere near the scene of the crime at the time in question. The Crown now produces new evidence of your client’s presence at the scene during the time in question. Faced with the new evidence your client changes his story. Yes he now remembers he was there but did not commit the crime. What do you do? Is it just cause for withdrawal? You are 8 weeks into a trial and your client has maintained that they were nowhere near the scene of the crime at the time in question. The Crown now produces new evidence of your client’s presence at the scene during the time in question. Faced with the new evidence your client changes his story. Yes he now remembers he was there but did not commit the crime. What do you do? Is it just cause for withdrawal?

R v Nerbas [2011] QCA 199 Solicitors advised their client, Mr Nerbas, to plead guilty and that they had to withdraw as they were now conflicted. Nerbas continued unrepresented, pleaded guilty as advised and then appealed the decision. The Supreme Court upheld the appeal. “However in my view, this change in his instructions would not have required or permitted his counsel and solicitor to withdraw from the case. They were precluded from conducting his case upon any factual basis which they knew to be false. But they would not have been placed in that position by this change of instructions. They would have been understandably sceptical about the applicant’s new instructions. But it was not for them to adjudicate upon their truth.” McMurdo J at 50 Solicitors advised their client, Mr Nerbas, to plead guilty and that they had to withdraw as they were now conflicted. Nerbas continued unrepresented, pleaded guilty as advised and then appealed the decision. The Supreme Court upheld the appeal. “However in my view, this change in his instructions would not have required or permitted his counsel and solicitor to withdraw from the case. They were precluded from conducting his case upon any factual basis which they knew to be false. But they would not have been placed in that position by this change of instructions. They would have been understandably sceptical about the applicant’s new instructions. But it was not for them to adjudicate upon their truth.” McMurdo J at 50

LIVLIV 6. Termination of Engagement 6.1 A practitioner must complete the legal services required by the practitioner's engagement, unless - 6.1.1 the practitioner and the practitioner's client have otherwise agreed; 6.1.2 the practitioner is discharged from the engagement by the client; 6.1.3 the practitioner terminates the engagement for just cause, and on reasonable notice to the client; or 6.1.4 in the case of a practitioner not being a firm, the practitioner’s engagement is terminated by the practitioner’s firm. 6. Termination of Engagement 6.1 A practitioner must complete the legal services required by the practitioner's engagement, unless - 6.1.1 the practitioner and the practitioner's client have otherwise agreed; 6.1.2 the practitioner is discharged from the engagement by the client; 6.1.3 the practitioner terminates the engagement for just cause, and on reasonable notice to the client; or 6.1.4 in the case of a practitioner not being a firm, the practitioner’s engagement is terminated by the practitioner’s firm. ASCR 13.1

ASCRASCR 13.1A solicitor with designated responsibility for a client’s matter must ensure completion of the legal services for that matter UNLESS: 13.1.1the client has otherwise agreed; 13.1.2the law practice is discharged from the engagement by the client; 13.1.3the law practice terminates the engagement for just cause and on reasonable notice; or 13.1.4the engagement comes to an end by operation of law. 13.1A solicitor with designated responsibility for a client’s matter must ensure completion of the legal services for that matter UNLESS: 13.1.1the client has otherwise agreed; 13.1.2the law practice is discharged from the engagement by the client; 13.1.3the law practice terminates the engagement for just cause and on reasonable notice; or 13.1.4the engagement comes to an end by operation of law.

Firing a client 2 Your client is a committed conservationist who wishes to challenge a government decision to allow construction of domestic dwellings in an environmentally sensitive area. On examining the grounds for appeal you realise this is a hopeless case and instruct your client accordingly. Your client insists on proceeding. Is this just cause for terminating the retainer? What are the issues you need to consider? Your client is a committed conservationist who wishes to challenge a government decision to allow construction of domestic dwellings in an environmentally sensitive area. On examining the grounds for appeal you realise this is a hopeless case and instruct your client accordingly. Your client insists on proceeding. Is this just cause for terminating the retainer? What are the issues you need to consider?

The curious case of Buxton v Mills-Owen [2008] EWHC 1831 (QB) – Justice Mackay [2010] EWCA Civ 122; [2010] WLR (D) 49 – Court of Appeal Entire contract? Can you claim your fees? Duties to the Court v Duties to Client? What if the case is truly ‘hopeless’? [2008] EWHC 1831 (QB) – Justice Mackay [2010] EWCA Civ 122; [2010] WLR (D) 49 – Court of Appeal Entire contract? Can you claim your fees? Duties to the Court v Duties to Client? What if the case is truly ‘hopeless’?

Hopeless Cases “[I]t is one thing to present a case which is barely arguable (but arguable nevertheless) but most likely to fail; it is quite another to present a case which is plainly unarguable and ought to be so to the lawyer who presents it. In my opinion, with respect, it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable.” Davies JA, Steindl Nominee Pty Ltd v Laghaifer [2003] 2 Qd R 683 at [24] See Legal Profession Complaints Committee v Carlose [2012] WASAT 104 for an example of disciplinary proceedings being brought against a lawyer as a result of pursuing a hopeless case. “[I]t is one thing to present a case which is barely arguable (but arguable nevertheless) but most likely to fail; it is quite another to present a case which is plainly unarguable and ought to be so to the lawyer who presents it. In my opinion, with respect, it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable.” Davies JA, Steindl Nominee Pty Ltd v Laghaifer [2003] 2 Qd R 683 at [24] See Legal Profession Complaints Committee v Carlose [2012] WASAT 104 for an example of disciplinary proceedings being brought against a lawyer as a result of pursuing a hopeless case.

And don’t forget…. Our conduct and behaviour should reflect the character we aspire to have as a profession. This means that as individuals engaged in the profession and as a profession: We primarily serve the interests of justice. We act competently and diligently in the service of our clients. We advance our clients' interests above our own. We act confidentially and in the protection of all client information. We act together for the mutual benefit of our profession. We avoid any conflict of interest and duties We observe strictly our duty to the Court of which we are officers to ensure the proper and efficient administration of justice We seek to maintain the highest standards of integrity, honesty and fairness in all our dealings. NSW Law Society Statement of Ethics “Riley’s” NSW Solicitors Manual Our conduct and behaviour should reflect the character we aspire to have as a profession. This means that as individuals engaged in the profession and as a profession: We primarily serve the interests of justice. We act competently and diligently in the service of our clients. We advance our clients' interests above our own. We act confidentially and in the protection of all client information. We act together for the mutual benefit of our profession. We avoid any conflict of interest and duties We observe strictly our duty to the Court of which we are officers to ensure the proper and efficient administration of justice We seek to maintain the highest standards of integrity, honesty and fairness in all our dealings. NSW Law Society Statement of Ethics “Riley’s” NSW Solicitors Manual

In the end, it all comes down to 10 words

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