A party to a Family Law proceeding can make an application to the Court to restrain a lawyer from acting on behalf of the other party. The Court can grant this injunction on three bases.
Bases for granting the injunction
- Breach of Confidence
In this situation, allowing a lawyer to continue to act would involve a risk that the lawyer may use information in relation to which the lawyer has a duty of confidence to the former client to disadvantage the former client.
Most applications and this article will discuss the breach of confidentiality.
- Breach of Duty of Loyalty
A lawyer has a fiduciary duty of loyalty to the client that continues even after the retainer has ended. In some circumstances, it can be inconsistent, with the duty of loyalty, for the lawyer to act against a former client.
- The Court’s Implied Powers
In some instances, the Courts can exercise their implied powers to restrain a lawyer from acting on behalf of a client if the Court believes that such an injunction is warranted for the proper administration of justice.
When determining whether or not to grant an injunction the Courts apply the test as stated by Cronin J in Gratton v Gratton (No 3) [2014] FamCA 839 as:
“The power of the Court will be exercised where a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires that the legal practitioner be prevented from acting for a client……”
Breach of Confidence
To grant an injunction involving breach of confidentiality the Full Court set out three consideration in Osferatu v Osferatu [2015] FamCAFC 177 at [34]:
- whether a firm is in possession of information which is confidential to the former client;
- whether that information is or may be relevant to a matter in which the firm is proposing to act for another party with an interest adverse to the former client;
- whether there is any risk that the information will come into the possession of those persons in the firm working for the other party.
The party seeking the injunction has the onus of proving the first two propositions while the opposing party has the burden of establishing the third proposition.
In assessing the level of risk, the Court in Osferatu v Osferatu [2015] FamCAFC 177 stated that:
“The consideration should be whether there is a real risk of misuse as opposed to one which is merely fanciful….”
Another key factor in determining these applications is the timing. As soon as the issue of confidentiality arises, the lawyer should seek instructions on whether to make the application as delay has been regarded, by the Courts, as an implied waiver of the right to object as per Dalton & Dalton [2017] Fam CAFC 78.
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