By Paul Monaghan -
The forensic nature of law sharpens the mind of a skilled lawyer who becomes trained to consider every avenue and move for the successful representation of a client. A vigorous legal defence will always be expected and will employ tactics to seek the best outcome.
However, the questions arise of what are ‘legitimate tactics’ and what are the required standards of a solicitor when representing a client?
What happens when mistakes occur and there may be a conflict that arises that requires the demonstration of ‘legal ethics’ regarding confidential information?
This can be illustrated when confidential information may be inadvertently disclosed to an opposing solicitor in the ordinary course of a matter. When this occurs it gives rise to obligations upon the receiving solicitor, where they ‘…must not use the material …….and must return, destroy or delete the material……notify the other (sending) solicitor….. not read any more of the material……and if a solicitor is instructed by a client to read confidential material …… must refuse. .”1
Inadvertent disclosure can occur by several means, ranging from the opposing solicitor forwarding information by error, faults in transmission including mail and electronic means, and by error in file management. However, a disturbing tactic that may be used by some clients is to try and compromise the opposing solicitor by a ‘deliberate disclosure’ being claimed as an ‘inadvertent disclosure’ when the client chooses to provide ‘claimed’ confidential material to the opposing solicitor.
Indeed the Professional Conduct Committee recently considered a complaint where this tactic was allegedly deployed by the client. A number of family law practitioners on the Committee observed that they are aware of instances where clients have deliberately forwarded documents to the solicitors acting for their spouse in family law proceedings, with the intention of having the solicitor acting for their spouse forcibly removed and restricted from acting in the proceeding.
In such examples, compliance with the solicitors’ rules become a protective means of resolving the perceived conflict. The receiving solicitor is obliged to comply with the rules and by doing so would be protected by them. The responsibilities arising from solicitors’ Rule 31 may be viewed as “….an example of professional, ethical obligations of legal practitioners supporting the objectives of the proper administration of justice…”
The solicitor representing such an unruly client cannot be party to such acts.
As an officer of the court, we must uphold the standards required to maintain the integrity of the legal process. This includes avoiding the deliberate acts of mischief, abuse of process, or use of tactics that are attempts to frustrate, coerce or manipulate the system for a particular outcome. It is a lesson in risk management that may be used when dealing with other solicitors and their unruly clients.
