‘Conflicting out’ in big money divorce cases

Family Law|June 21st 2016

‘Conflicting out’ to stop a lawyer acting against you in a case, is, to put it frankly, a dirty trick.

When a married couple separates emotions are often running high and there can be a lot of anger between two people who once adored each other. Animosity can linger and so can fear of what might happen next. It is a potent mix. So when one spouse is looking for a lawyer to represent their interests during their upcoming divorce, they may want to sabotage their partner’s efforts to do the same. They want an uneven playing field.

What is the conflicting out?

In family law cases, a conflict of interest occurs if the same solicitor has already advised the other spouse in the same case, because he is already in possession of privileged information given on behalf of the first spouse.

Knowing this, some people going through a divorce will consult several lawyers for advice on how to proceed before they finally choose one. This, they hope, will effectively rule out all the solicitors they have spoken to about the case as representatives for their spouse.

And this process is known as ‘conflicting out’.

Lawyers are wise to it. A spouse in a desperate rush to see a specific lawyer for example may have ulterior motives. A spouse whose question in a first interview is “So this means you can’t advise my other half?” usually is doing just that. Sometimes they win, sometimes they don’t. It all depends.

The issue popped up in the news today in the story of a big money divorce case in Western Australia. The dispute received international media attention because one lawyer was alleged to have “switched sides”.

During the long-running dispute over AU $100 million and also over custody of the couple’s young son, a junior member of the wife’s legal team left the law firm and took a new job with the firm representing the husband.

In response, the wife’s legal team applied for an injunction which would ban anyone working at the opposing firm from representing the husband in the dispute. They claimed that the lawyer who joined the firm had knowledge of the wife’s “emotional state and personality” and other confidential information which could be shared with the husband’s legal team.

At the Family Court of Western Australia in Perth, Judge John Walters, having gone into all the facts of the case, was unconvinced. He said that the wife’s claims were “neither cogent nor persuasive” and believed there was very little risk of confidential information being leaked. The lawyer’s “interactions with the wife were fleeting, or otherwise comparatively superficial”, the judge continued, adding that the wife had “little to fear” from any revelations but was confident the lawyer “would do no such thing”.

I agree with the judge. A junior lawyer is unlikely to create problems on a case such as this. In real life, family lawyers take jobs with rival firms all the time. It’s a question of degree though and if a lawyer joins us from a firm with whom we have a current case then, if necessary, we can take steps to ensure the new lawyer is completely ring fenced from it. We can move the file to another office, without additional cost to our existing client, and the new lawyer will never come into contact with the case at all. It’s very useful having offices all over the country! What goes on in a Manchester office, for example, won’t be known to our lawyers in London.

The other spouse may still try and make more of it than in reality is the case – hence the Australian judge took what seems to be a pragmatic view.

However it all depends on the circumstances which do need to be considered on a case by case basis.

Interestingly, the judge handed down another judgment on the same day dealing with the same problem.

In the second case he ruled that there was enough evidence to suggest that a lawyer moving from a firm representing a husband to one acting for the wife would create “a real risk of confidential information being disclosed”. In that case, however, the lawyer was senior, had been with his first firm for 16 years and had taken detailed instructions from the husband on the case. The judge was satisfied that lawyer did have material information and whilst not impugning the integrity of either the lawyer or the firm, was unconvinced that the law firm representing the wife in the second case had been able to put in place adequate steps to ensure that the information their new lawyer had, would be kept confidential. As a result, he ruled that despite the inconvenience and increased cost to the wife, the wife’s firm could no longer represent her.

So there you have it. Two judgments on the same day dealing with conflict with two different outcomes. These cases show that the issue is not as clear cut as it can sometimes appear. If you are worried that you may be a victim of this dirty trick, do not lose hope. There is a chance that some firms can work around it. If they cannot, do not take it personally. It is neither your fault nor your lawyers. The best thing you can do, though, is find another lawyer as quickly as possible.

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