Successive Conflicts Acting against a Former Client – General A lawyer may owe duties to a former client and an existing client whose Purpose – conflict and therefore are interest’s termered ‘successive conflicts’. The duty of confidentiality survives Duty of Confidentiality Survives – – whether imposed by contract or in equity and does not dissolve once the – retainer ends as the information does not lose its confidential nature simply because the retainer has been completed. Wan v McDonald A fiduciary Acting against a Former Client Intervention next page] – [Judicial – cannot act at the same time both for a client and against the client. Prince Jefri Bolkiah v KPMG of misuse of confidential Spincode Pty Ltd v Look Software Pty Ltd – ‘Danger information is not the touchstone for invention when a solicitor acts against a former Per Young J. client.’ Acting for More than One Party a – solicitor who tries to act for both parties puts himself in a position that he ‘a must be liable to one or the other whatever he does.. it would be his fault for mixing himself with the transaction in which he has two entirely inconsistent interests and solicitors who try to act for both [parties] appreciate that they run a very serious risk of liability to one or the other owing to the duties and obligations which such curious relation puts upon them. The principle behind the law in this area is that man can serve two ‘no masters’ Moddy v Cox Lawyer who acts as a witness will have a conflict of Lawyer Acting as a Witness – interest in their capacity as a legal adviser per Corporate Systems Publishing v Lingard A solicitor cannot act where there Cannot be called where ‘Real Possibility’ – is real possibility that they may be a witness Clay v Karlson The solicitor in their capacity as a witness Forced to Defend Conduct – – – would be forced to defend conduct and their independence to the client is in question. Afkos Indutries v Pullinger Stewart Family law matters [see later after judicial intervention] See Judicial Intervention [next page]
Successive Conflicts – Acting against a Former Client General Purpose – A lawyer may owe duties to a former client and an existing client whose interest’s conflict and therefore are termered ‘successive conflicts’. Duty of Confidentiality Survives – The duty of confidentiality survives – whether imposed by contract or in equity – and does not dissolve once the retainer ends as the information does not lose its confidential nature simply because the retainer has been completed. Wan v McDonald Acting against a Former Client – [Judicial Intervention next page] – A fiduciary cannot act at the same time both for a client and against the client. Prince Jefri Bolkiah v KPMG Spincode Pty Ltd v Look Software Pty Ltd – ‘Danger of misuse of confidential information is not the touchstone for invention when a solicitor acts against a former client.’ Per Young J. Acting for More than One Party – a ‘a solicitor who tries to act for both parties puts himself in a position that he must be liable to one or the other whatever he does.. it would be his fault for mixing himself with the transaction in which he has two entirely inconsistent interests and solicitors who try to act for both [parties] appreciate that they run a very serious risk of liability to one or the other owing to the duties and obligations which such curious relation puts upon them. The principle behind the law in this area is that ‘no man can serve two masters’ Moddy v Cox Lawyer Acting as a Witness – Lawyer who acts as a witness will have a conflict of interest in their capacity as a legal adviser per Corporate Systems Publishing v Lingard Cannot be called where ‘Real Possibility’ – A solicitor cannot act where there is real possibility that they may be a witness Clay v Karlson Forced to Defend Conduct – The solicitor – in their capacity as a witness – would be forced to defend conduct and their independence to the client is in question. Afkos Indutries v Pullinger Stewart Family law matters [see later after judicial intervention] See Judicial Intervention [next page]