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Restraining a Lawyer from Acting Against You

Dispute Resolution

Restraining a Lawyer from Acting Against You
Providing instructions to your lawyer can often be an anxious and emotional experience for clients.

It is important that you feel secure in knowing that:

  • What to disclose to your lawyer in interviews;
  • What your lawyer may learn about you; and
  • How you react to certain issues and stressors, will remain confidential, and not be later used against you.

Lawyers extract a lot of knowledge and information from their clients. This information is derived:

  • Directly from the instructions that you provide both verbally and through written statements;
  • From document’s that are disclosed related to your case; and
  • From witness statements.

Additionally your lawyer will gain information about you in observing how you react to particular stressors, persons and allegations that may have been made against you.

Your lawyer will become familiar with:

  • What you are comfortable about discussing;
  • What you do not feel comfortable about discussing; and
  • What “Pushes your Buttons” and makes you react adversely or aggressively.

In the recent Federal Magistrates Court decision of Karapataki & Karapataki [2011] FMCAfam 6 , Federal Magistrate Walters acknowledged that:

“legal practitioners can often learn a great deal about a client’s personality, weaknesses or strengths, honesty (or perhaps dishonesty), fears and reactions (including reactions to pressure or tension).  Similarly, legal practitioners can learn much about a client’s attitude and approach to litigation.”

In McMillan, [2000] FamCA 1046; the Full Court of the Family Court pointed out that when lawyer acts for a client:

“The client’s most secret devices and desires, the client’s most frightening fears, will often, of necessity, be revealed.  The client must be secure in the knowledge that the lawyer will neither disclose nor take advantage of these revelations.

Our judicial system could not operate if this were not the case.  It cannot function properly if doubt or suspicion exists in the mind of the public that the confidential information disclosed by a client to a lawyer might be revealed.”

This exercise in gathering confidential information about a client by a lawyer is commonly referred to as “Getting to Know You” factors.

Prior to separating it is quite common that a married or defacto couple will have engaged one of more lawyers throughout or before their relationship, for the purposes of Will preparations, property and other commercial transactions, and litigation.

So what happens when you separate, and your ex partner chooses to retain as their family lawyer in matrimonial proceedings, a legal practitioner who has acted for you before. That lawyer may have “Gotten to Know” you due to being retained in another matter, and would most likely be in possession of confidential information about you.

The short answer is that you must object to this lawyer acting against you, and object very quickly and unequivocally in writing.

There is no absolute rule that a lawyer who has acted for a client in a particular matter must not act against that client in subsequent family law proceedings.

At The Law Shack we believe that high ethical standards (and plain common sense) dictate that a lawyer should simply decline to act against a former client, unless that former client consents to the lawyer acting against them having been fully informed of the risks.

Acting against a former client is a glaring (and prima facie) conflict of interest.

If that lawyer continues to act against you after an objection has been made, and refuses to withdraw as the other party’s lawyer, then an application will need to be made to the Court to restrain that lawyer from acting in the proceedings.

In the recent case of Nettle & Nettle (2011) FMCAfam 414 Federal Magistrate Buamann accepted that the current legal approach to be adopted in Australia is that a lawyer against whom an objection has been made on this basis will be generally be restrained from acting against a former client:

“where only a theoretical risk of misuse of the confidential information is shown to exist.”

In Patten & Thangathurai (No.2) [2007] FamCA 587 [Pond & Thurga] O’Ryan J of the Family Court of Australia noted that:

“All that is necessary is that is that the wife (in that case the former client) swears that she believes not unreasonably that information may be used against her, or at least to her disadvantage in these current proceedings.”

There are three possible grounds for restraining a lawyer from acting for a party to litigation:

The inherent jurisdiction (or implied power) of the court to supervise and control the conduct of lawyers as officers of the court (in order to safeguard the due administration of justice);

A breach of a supposed fiduciary duty of loyalty not to act against a client, or against a former client, in the same matter or a closely related matter; and

The danger of misuse of confidential information.

In Karapataki & Karapataki [2011] FMCAfam 6, the Court set out the grounds that give the Court the power to restrain a lawyer from acting,  and went on to say:

“In a case where a former client’s credibility becomes a matter of significance, his or her former legal practitioner’s knowledge of the “getting to know you” factors can become a powerful weapon at the disposal of the practitioner’s new client.  Irrespective of the actual effectiveness of the weapon, it can be anticipated that the former client would feel anxiety about the potential of being cross examined by a practitioner who might be perceived as being in a position of unfair superiority – ─ or by Counsel instructed by such a practitioner.   In Black v Taylor, for example, Richardson J. said (in the context of proceedings involving a family solicitor potentially acting for the estate of a deceased family member in proceedings brought against it by another family member):

… it would not be unreasonable for a family member to feel chagrin and concern to find a lawyer who had built up knowledge of that kind was able consciously or unconsciously to draw on it when acting against (the family member).”

The last thing you need when giving evidence in a witness box in the Family Law Courts, is being cross-examined by a lawyer who:

  • Knows your personality;
  • Knows your strengths and weaknesses;
  • Knows your honestly, dishonesty and integrity;
  • Knows what to issues to “suggest “to you as answers to the questions being asked;
  • Knows how to “Push your Buttons’’ to trigger an adverse response; and
  • Knows how to have you reacting in a way that makes you nervous, anxious or even angry, causing you to lose your focus and concentration (which will adversely affect the evidence that you are giving to the Court).

If any of these issues that I have touched on in this summary of the current law are concerning you in your current or anticipated family court proceedings, please contact us for an initial free consultation with a view to urgently exploring these concerns and raising any necessary objection before it’s too late.

Delay in objecting to a previous lawyer against you will most likely prevent the Court from making an order restraining the lawyer from continuing to act in the proceedings.

The Court warned about such delay in the case of Karapataki mentioned above by reinforcing the following legal precedent:

“Irrespective of the ground relied upon to restrain a legal practitioner from acting for a party to litigation, delay, and especially unreasonable or unexplained delay, is likely to be fatal to the application.

The leading authority is McGillivray v Mitchell (1989) FLC 92-818, where the Full Court (of the Family Court) said:

… if a family law litigant has a genuine concern about a former legal adviser acting against him or her in later family law litigation, the litigant must take the point at least in correspondence with the other side at the earliest possible opportunity.  If he or she does not do so, then he or she is possessed of a weapon which can later be used as a delaying tactic at some point in the proceedings convenient to his or her position.  Furthermore a failure to take the point initially must also cast doubt on the bona fides of any later complaint concerning the existence of confidential information in the practitioner in question, and on the bona fides of any alleged apprehension regarding the possible misuse of such confidential information.”


Gary Mallett
Senior Family Lawyer
The Law Shack

 

  • 11 Feb | '2015

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