Can my property lawyer act on my divorce?

29th may 2015

By Lisa Wagner

Conflicts between you and your former solicitor can arise in family law matters.  Your lawyer or law firm may have acted for you and your partner over a period of years, perhaps when you bought a property together, or sold a business. Your lawyer may have even drafted your wills.

Following a breakdown of marriage and the commencement of a property application under the Family Law Act 1975, you may ask whether it is proper for your previously shared lawyer to act for you against your partner.  Generally a strict approach is adopted in this regard as family law matters can be highly sensitive.

In the case, In the Marriage of Thevenaz (1986) 84 FLR 10, the husband sought orders restraining the wife’s lawyer from acting.  The wife’s lawyer had been a partner in a firm that had acted for both parties on the purchase of their house almost 10 years earlier, the subsequent sale of that house and the purchase of the matrimonial home.  Even though the wife’s lawyer had not personally acted on the property matters,  had no knowledge of the files and had never actually met the husband, it was found that the wife’s lawyer could still not act.  The reason was that the property files disclosed information that was different from the instructions given by the husband to his current solicitors and that he could be embarrassed by the disclosure of the information.  The wife had to find another  lawyer.

One way around the conflict issue is for your lawyer to create an information barrier.  However, this will only be effective if it eliminates any real and sensible possibility of misuse of your confidential information.

To establish an effective information barrier, a law firm needs to comply with the ten guidelines laid down by the Law Society of NSW in its publication ‘Information Barrier Guidelines, Council 16.3.06‘.  In summary, the firm should:

  1. Have documented protocols for the information barrier;
  2. Nominate a compliance officer to oversee the information barrier;
  3. Ensure that each client affected by the ‘conflict of interest’ acknowledges in writing that the Firm’s duty of disclosure to these clients does not extend to any confidential information which may be  held within the Firm as a result of the earlier matters and consents to the Firm acting on that basis;
  4. Ensure that any solicitors who have worked on your previous matter are identified and recorded as ‘screened persons’ (as defined in the Barrier Guidelines);
  5. Ensure each screened person provides an undertaking to the Firm that:
    a. they will not have any involvement with the client(s) or personnel involved with the current matter;
    b. they have not disclosed and will not disclose any confidential information about the earlier matters to any person other than a screened person or the compliance officer;
    c. they will immediately report any breach or possible breach of this undertaking to the compliance officer;
  6. Ensure personnel involved with your current matter should not discuss the earlier matters with, or seek any relevant confidential information about the earlier matters from, any screened person.  Such personnel should provide undertakings confirming that:
    a. no confidential information about the earlier matters has been disclosed to them;
    b. they will not have any involvement with a screened person for the purposes of the current matter;
    c. they will not seek or receive any confidential information about the earlier matters from a screened person or in any other way; and
    d. they will immediately report any breach or possible breach of this undertaking to the compliance officer.
  7. Ensure there are strict and carefully defined procedures for dealing with any contact between personnel involved or any other crossing of the barrier; and ensure there is a physical segregation of the personnel involved;
  8. Effectively protect the confidentiality of all correspondence/documents related to any earlier matters, including storing files in a secure place and using technology to protect access to electronic files, so the same can only be accessed by the screened persons and/or the compliance officer;
  9. Ensure there is an ongoing information barrier education program in place; and
  10. Ensure the compliance officer monitors the effectiveness of the barrier and that there are disciplinary sanctions for any breach of the above.

An easy and effective way of ensuring that conflicts don’t arise in your matter is to seek the services of a specialist in the area of family law that you are in need of.  At Doolan Wagner Family Lawyers we specialise in family law matters.  If you perceive a conflict arising, call us to discuss your options on 02 9437 0010 or email us at enquiries@familylawyersdw.com.au to arrange a confidential discussion.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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