- There are circumstances in which a solicitor should decline to act for a client, or cease to continue to act.
- There are three main bases upon which a Court will restrain a solicitor from acting, being:
- where there is a risk that the solicitor will misuse confidential information;
- where the solicitor would be in breach of fiduciary duty; and
- 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 in a situation which might, or might be seen to, be against the former client’s interests.
Recent Federal Court proceedings involving the former Attorney-General Christian Porter MP suing the ABC in defamation made a lawyer’s ability to continue to act for a client the unlikely subject of front page news. By application made in separate proceedings, orders were sought and obtained to restrain a barrister from acting in the defamation proceedings (Dyer v Chrysanthou (No 2) (Injunction)  FCA 641 (‘Dyer’)). This case serves as a timely reminder to practitioners to familiarise themselves with the principles and rules that govern this area.
A large number of cases discuss the principles which govern this area and in recent years the jurisprudence in Australia has become settled. The summary given by Brereton J in Kallinicos v Hunt (2005) 64 NSWLR 561;  NSWSC 1181 is widely accepted as stating current principles (case references omitted):
The foregoing authorities establish the following:-
- During the subsistence of a retainer, where the court’s intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court’s jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests …
- Once the retainer is at an end, however, the court’s jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure) …
- After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for the court’s intervention, such duty having come to an end with the retainer … However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice … Prince Jefri does not address this jurisdiction at all. Belan v Casey and British American Tobacco are not to be read as supposing that Prince Jefri excludes it. Asia Pacific Telecommunications appears to acknowledge its continued existence.
- The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice …
- The jurisdiction is to be regarded as exceptional and is to be exercised with caution …
- Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause …
- The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief …’