“Conflicting out”: when can solicitors be prevented from acting?

What are the circumstances in which a firm of solicitors may be restrained from acting for a client in a family law case? Following my post earlier this week, I have decided to take a closer look at this question.

After all, the circumstances in which an application may be made to debar a particular firm are not set in stone and there isn’t a great deal of jurisprudence on the subject. Marco Pierre White, for example, tried to have his wife’s solicitors injuncted from acting for her because he was suing them, but his case failed when it was heard before Mr Justice Macfarlane.

Injuncting the lawyers was mentioned as a possibility in Imerman v Tchenguiz . In that case it was not only the wife, but also her lawyers who had access to her husband’s confidential documents. Her legal team should not have caught sight of the documentation, because it was improperly obtained from the husband and thus, on the face of it, they appear to be in breach of confidence to the husband.

Imerman, as we know, is a one-off firework of a case, which involved the ransacking of an office and downloading of documents from a computer by two brothers. They were anxious to help their sister in her divorce and convinced her husband would cheat her. The amount of documentation to which they had access was dizzying. But the information was not passed on wholesale to the wife and her lawyers. It was edited by an intermediary barrister specifically instructed for the task. The wife and her solicitors received seven files of information that, it was considered, the husband could not claim to be privileged. When the case was first heard, Mr Justice Moylan ordered that copies should be retained by Mrs Imerman and her lawyers after Mr Imerman had the opportunity of removing any documents over which he claimed privilege.

In the Imerman case there is not, as yet, an order debarring Mrs Imerman’s solicitors and counsel from representing her, notwithstanding the fact that they have had access to the “filleted” documentation. It certainly seems to have crossed the mind of the court, however, that such an application would be made notwithstanding the filleting exercise and if so, the outcome is perhaps foreseeable. That said, I expect the decision – whichever way it goes – to be litigated as fully and as lengthily as the rest of the case.

So what are the arguments in favour of debarring a solicitor in these circumstances?

The Hildebrand Rules

An opposing solicitor who receives and uses tainted documentation has no defence to a breach of confidence claim by arguing that he or she was acting in accordance with the Hildebrand Rules. As we have seen in the previous post, the Hildebrand Rules relate only to the appropriate time at which disclosure of improperly obtained documentation should be made, and nothing else. It does not legalise in any way the sight, use, or retention of copied documents which were improperly obtained. This point was strongly made in paragraph 121 of the Imerman judgment.

One remedy for a breach of confidence claim is not only the return of any documents or copies, but also an injunction considered in paragraphs 73 -74 of the Imerman judgment. Such an injunction would prevent the other side from passing on or using the information “always subject to any good reason to the contrary on the facts of the case”.

So, it is open to the wronged party to seek an order restraining the solicitors from using the information obtained. But should they also be debarred from continuing to act?

In the Imerman case, the court stated that:

Where the information has been passed on whether by the wife…to the solicitors acting for her in the ancillary relief proceedings, the court might think it right and indeed in appropriate circumstances necessary to go so far as to enjoin her from continuing to instruct those solicitors in the proceedings.

But…this seems harsh if the lawyers were acting in accordance with accepted practice at the time.

Let’s play Devil’s Advocate. Is the crux of the problem not so much the improper obtaining of information, rather the nature of that information?

Suppose the wife’s lawyers have seen confidential material that has been wrongfully obtained. They could argue that they are saved by the husband’s obligation to provide full and frank disclosure during the proceedings. They should see the disclosure anyway. Therefore the lawyers should not be disqualified unless they have had access to documentation that would not normally be disclosed in the process and might be covered by legal professional privilege. One example would be – say if there was correspondence from the husband to his own family lawyers, discussing the tactics of the case. As we know, the documentation was filtered expressly for that purpose, and so this seems unlikely.

In the Imerman judgement The Court of Appeal made particular reference to the case of Re Z ((Re Z [2009] EWHC 3621 (Fam)) at paragraph 121. This is a case that throws up factual problems of its own, and was only heard at first instance. It is of “persuasive authority” rather than binding.

“Chinese walls” and the protection of confidentiality

In civil law a solicitor may act for one client then against the same client, providing sufficient protections are put in place to protect the client’s information from being disclosed. The leading case is Bolkiah v KPMG (Bolkiah (Prince Jeffri) v KPMG (a Firm) [1999] 2 AC 222), in which the work done for the client had been so vast and so soon before the accountancy firm acted against him, the legal firm was restrained from acting because the protections they had put in place were insufficient.

In another case a firm was permitted to act, notwithstanding that a partner had represented the client in a previous firm, because of the arrangements or Chinese Walls they put in place to prevent any flow of information which could cause a conflict of interest.

The case of Re Z was similar in its facts. The husband argued that a conflict had arisen because nine years earlier he had personally instructed the senior partner (Mrs F) of his wife’s firm (F & Co) while she had been a partner at another firm (G & Co). The parties had been involved in a brief emergency skirmish before reconciling. The husband later instructed new solicitors. When the marriage finally failed nine years later, the wife instructed a partner in Mrs F’s new firm and Chinese Walls were put in place to ensure Mrs F remained unaware of what was happening on the case and never came into contact with the files.

The husband protests

The husband initially complained, then acquiesced to the firm representing his wife. As matters heated up he began to argue there was a conflict, and that a danger was posed to him of information he had given to his solicitor nine years earlier being used against him. The question thus arose of whether he would be prejudiced, given he had made full and frank disclosure of his financial position in the original skirmish with his wife.  But what additional information did the solicitor have that would “conflict out” the present solicitor from representing the wife?

The husband alleged that there had been a year-long, professional relationship with Mrs F. During the same period he also alleged there had been a close social relationship with Mrs F, her husband and her brother in the UK and abroad. As such, because of the close personal relationship he claimed he had developed with the family, he contested that the solicitor had too much information about him and the protections in place would be insufficient.

The wife wished to continue to instruct the firm in question. She opposed the application for an injunction.

The fundamental problem with this case as I read it is a tricky one. Because of the Chinese Walls, Mrs F was never permitted to know what the husband was saying!

Do solicitors normally form close personal relationships with their clients? In thirty years of practice, I never have. I have never socialised on holiday with a client, nor have any of my clients ever formed relationships with my husband or other family members.

As a result of the efficacy of the Chinese Walls, Mrs F was stymied and even if she had wished to do so, was prevented from disputing the substantive length of the retainer, the number of court hearings, her attendances if any at court, the extent of a social relationship with the client at home or abroad (if any) and the husband’s friendship (if any) with any other members of her family.

In the Re Z judgement the court fully accepted the husband’s evidence sworn on oath, which suggested a relationship above and beyond the norm, notwithstanding the passage of time, and the burden of putting in place stringent Chinese Walls sufficient to protect the husband passed to the solicitors. The court held that F &Co should be restrained from acting further for the wife and she was obliged to instruct an alternative firm. It seems to me an interesting point that barristers are routinely instructed against each other, both of them sharing the same room in the same chambers and using the same clerks in the same case!

So as far as the relevance of Re Z to Imerman is concerned, it would appear that in order to restrain her legal advisers, the husband needs to demonstrate something more to the court than sight of documents which, however disclosed, fulfil the duty of full and frank disclosure. But, as was also considered in Re Z, he also needs to have acted swiftly if he intends to have them successfully restrained.