Barrister Guy Waterman discusses the circumstances where a solicitor might be restrained from representing a party in a family law matter: The decision in MONTAGUE & MONTAGUE  FCCA 2747 and what solicitors can learn from this case.
In this case, Altobelli J in a concise and useful Judgment considered the relevant principles in a case where the Husband sought orders that the Wife be restrained from instructing or continuing to instruct lawyers during the currency of the substantive proceedings.
The Wife opposed the Application.
His Honour found that the applicable law was found in the Full Court decision of Osferatu & Osferatu (2015) FamCAFC 177 (Paras 34-41).
His Honour identified from the authorities, see PhotoCure ASA v Queen’s University at Kingston  FCA 905 at  and , three stages that need to be considered:-
a. Whether the firm is in possession of information which is confidential to the former client;
b. 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;
c. Whether there is any risk that the information will come into the possession of those persons in the firm working for the other party.
His Honour went on to further refer to PhotoCure :
“The burden of establishing the first two propositions is upon the former client but the burden of establishing the third proposition moves to the firm proposing to act once the first two propositions are satisfied…”
His Honour then applied the test as follows (Para 5):
– Is the Wife’s firm in possession of knowledge which is confidential to the Husband? The answer is clearly yes. Even this is conceded by the Wife.
– Is that information relevant to the matter before the Court, that is, the dispute between the parties? Even if that is not conceded, the answer is, in this Court’s view, unequivocally yes. Given the allegations made by the Wife in these parenting proceedings, whatever confidential information might have been given in the criminal case is clearly relevant to the issues before the Court.
– Is there a risk, that is, a real risk, not a theoretical risk, that the information will come into the possession of those persons now in the firm representing the Wife?
His Honour further noted that the Full Court at para 39 was at pains to explain that the theoretical test no longer applies and the question is: Is there a real risk of misuse of confidential information, as opposed to a risk that is merely fanciful?
His Honour emphasised that just because a solicitor in the Wife’s firm had information, there is no cause to impute or attribute that knowledge to another member of the firm (Para 40 Osferatu).
The Husband’s Application was dismissed (Para 7).
His Honour made the following salient observations in respect of the emerging trend in such cases:
– I make this observation. In my opinion, the Full Court’s decision in Osferatu has swung the pendulum against restraining solicitors from acting in circumstances such as the present just because it might look bad or just because there is a theoretical risk that confidential information would come into the hands of those representing the Wife (Para 9).
– The Full Court, consistent with other authorities, has swung in favour of considering the consequences to the Wife of having to change solicitors in a case like this, in preference to the theoretical considerations of how the Husband or, indeed, the public, might perceive the situation (Para 10).
Guy Waterman was admitted as a Solicitor and practised extensively in the area of De Facto and Family Law and as a Mediator prior to being called to the Bar in 1993. Guy has continued to practice in the Family Law/De Facto areas as a Barrister and Mediator and during this time and has presented at seminars dealing with Family Law & Practice – Disclosure, compliance with Orders and making the most of financial experts in financial matters in conjunction with Joe Box, forensic accountant and Greg Jorgenson, registered valuer at BAQ, and Cost – Orders, Offer and Risks, How to Deal with a Client Raising That The Solicitor For The Other Party Has A Conflict Of Interest And Should Be Restrained From Acting, and Family Law Legislative Reform and Case Update. Contact Guy at [email protected]