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To act or not to act? Conflicts of Interest in Family Law Matters

In some circumstances, a court may make orders restraining a party to a family law matter from engaging particular lawyer to act on his or her behalf.

Lawyers working in all areas of law have a duty of confidentiality and loyalty to former and current clients, meaning they have a duty to protect confidential information communicated to them by a client.

Decisions of the Family Court have identified that this obligation is heightened in Family Law matters given the sensitive and personal nature of the subject matter of Family Law cases.

The court’s power to restrain party from engaging a particular Solicitor or member of Counsel derives from its inherent jurisdiction over its officers and to control its processes in the aid of the administration of justice.

The test to be applied by the Court when deciding such a matter is whether there is a theoretical rather than actual risk that either justice might not be done or appear to be done, or that there is a theoretical possibility that confidential information could be used against the client.

Case law has established that it is not necessary nor appropriate for the Court to make a finding that confidential information has or has not been provided.

The test reflects the importance the court gives to maintaining public confidence in the legal system. The courts have recognised that it is “of the utmost importance that justice should not only be done but should appear to be done”.

 

By Nicholes Family Lawyers

 

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