Solicitor who had acted for both parties showed no conflict of interest

The Family Court can legally restrain a solicitor from acting for a client on the basis of a conflict. In a recent property proceedings case, (House & Altimas [2012] FamCA 625, 3 August 2012), the applicant husband applied for an order restraining the respondent wife’s solicitor from representing her. The application was based on the fact that 14 years ago, the wife’s solicitor represented the husband in a claim arising from a road accident.

In practical terms, for there to be a conflict, the applicant has to prove that the applicant possessed confidential information which could be used in the current proceedings and would be prejudicial to the applicant.

The legal test to determine whether a solicitor should be restrained was stated in Asia Pacific Telecommunications Limited v Optus Networks Pty Limited [2005] NSWSC 550 as follows:

“whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice”.

In House & Altimas, Justice Ryan was not satisfied that the applicant had previously communicated confidential material to the respondent’s solicitor. 

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