By Fiona Kim and Tiarn Pauletto -
Snapshot
- Conflicts of interest aren’t just an ethical headache—they can unravel entire cases.
- Recent decisions like Maclean v Brylewski show that courts will step in to restrain solicitors even when clients consent, prioritising fairness and public confidence over individual choice.
- This article discusses recent cases where the court has exercised its inherent power to restrain a solicitor from acting where justice demands it, and the consequences for lawyers who blur the lines.
Solicitors must remain impartial and independent in litigation. To do otherwise arguably undermines the integrity of the judicial process and may also constitute a breach of fiduciary duty owed to a client.
The Full Court of the Federal Court, in Maclean v Brylewski, in the matter of Maclean [2025] FCAFC 133 (‘Maclean v Brylewski’), reaffirmed its inherent power to restrain a solicitor from acting where justice demands it, even if the client has given informed consent.
The court’s paramount concern is to uphold public interest in the administration of justice, rather than protection of the interest of an individual party to litigation. This power can be exercised by the court on its own motion.
