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Lawyers are a sentimental lot, often thinking wistfully of the image of a diligent lawyer dutifully writing and shuffling papers sitting at an old-fashioned roller-top desk. An image often presented as a modern Dickensian character that for centuries was the image of a reliable, hardworking and meticulous solicitor.

In the old days a simple roller top desk provided all the requirements of an effective information barrier, simply by the solicitor pulling down the roller top when anyone entered and keeping their own quiet counsel on having carriage of a matter.

By contrast, the modern solicitor is often surrounded in a cocoon of technological wonder, engaging in a modern dance of screen keyboard and headset with a swirl of magic and productivity undreamt of by our nineteenth century colleagues.

However, times have changed and the new technology we have at our disposal and the complexity of working in larger firms requires a more detailed approach to discharging our ethical obligations.

Has this miracle of technology and fast paced progress solved the basic problems of acting in an office where it is necessary to maintain confidentiality and ensure there are information barriers?

When complying with conduct rules that require recognition of and compliance with information barriers, such as when acting against former clients [1] or acting for multiple clients, [2] a burden is imposed upon the solicitor to comply with our relevant solicitors’ conduct rules.

A useful checklist of the requirements for an effective information barrier when acting against a former client have been summarized in the Australian Solicitors’ Conduct Rules Commentary 2024 which describes the essential elements as follows: [3]

  1. The solicitors acting for the new client, and the solicitors who acted for the former client, are identified and required to comply with strict written information barrier (separation) protocols which operate to protect the former client’s confidential information and remove the risk of misuse of the former client’s confidential information.
  1. The solicitors acting for the new client, and the solicitors who acted for the former client, provide an undertaking to the law practice that they will comply with the strict written information barrier (separation) protocols.
  1. There are disciplinary sanctions in place for failure to comply with the strict written information barrier (separation) protocols.
  1. The physical and electronic matter files and documents are secured so that:
  • only the solicitors acting for the new client can access the current matter files and documents.
  • only the solicitors who acted for the former client can access the former client’s matter files and documents.
  1. An experienced solicitor within the law practice (a designated compliance officer) with appropriate knowledge of a solicitor’s professional and ethical obligations (including confidentiality and conflicts of interest), should oversee the establishment and administration of the information barrier.
  1. The law practice should have in place an ongoing education program for all its solicitors regarding the protection of confidential information and the operation of information barriers.

When acting for concurrent clients there are the requirements to: [4]

  1. Isolate solicitors and the confidential information they hold within a law practice. Necessary procedures must be in place, prior to the conflict of duties arising, to ensure the screened solicitors do not disclose any confidential information to those solicitors in the law practice working on the current matter; and
  1. If there is a potential confidential information conflict involving concurrent clients, there will be two or more sets of screened solicitors each working separately and independently for different clients.
  1. This will involve greater administrative complexity than merely an information barrier in a former client situation, the principle remains the same.

In summary, an information barrier will only be effective if it “…eliminates any real and sensible possibility of misuse of confidential information…” [5]

Also, it is important to note that the Court may have the ultimate decision on recognition of an information barrier.  It is prudent to recognize that even with all reasonable steps taken to ensure an information barrier, the Court may decide not to accept the protocols a solicitor has in place.

Perhaps the firm using the old-fashioned roller top desk still finds a place for itself in the modern world.

Paul Monaghan is Senior Ethics Solicitor at the Law Society of NSW

[1] Australian Solicitors’ Conduct Rules – at rule 10.2.2 Conflicts concerning former clients

[2] Australian Solicitors’ Conduct Rules – at rule 11.4.2 Conflict of duties concerning current clients

[3] Refer to the Australian Solicitors’ Conduct Rules – Commentary 2024 at page 49

[4] Refer to the Australian Solicitors’ Conduct Rules – Commentary 2024 at page 62.

[5] See Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1 at 5; Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 at 237; Newman v Phillips Fox (1999) 21 WAR 309 at 322-323; and Babcock & Brown DIF III Global v Babcock & Brown International Pty Ltd [2015] VSC 453 at [66] to [69].