Whose Side are You on Anyway? Former-Client Conflict of Interest
(1998) 26(6) Australian Business Law Review 418
17 Pages Posted: 6 Jun 2015
Date Written: 1998
Changes in the practice of law have increased the potential for conflict between the duties owed to former and current clients. In particular, the development of the mega-firm and increases in lawyer mobility have placed enormous pressure on the existing conflict rules. This article examines the different approaches to disqualification of practitioners in this situation, and the various stages and components of the disqualification process. In determining the appropriate approach to disqualification, the importance of maintaining high standards in the legal profession, allowing litigants to choose their own counsel and mobility within the legal profession must be kept in mind. The current rule, which is based on the possibility of misuse of confidential information and an irrebuttable presumption of shared confidences, could lead to the absurd situation where the movement of a few lawyers would disqualify entire firms. This article proposes reform to the current rule to create a more flexible approach to conflict disqualification. This would involve an irrebuttable presumption of disclosure of confidential information at the primary disqualification stage, combined with the safeguard of a threshold substantial relationship test. At the secondary disqualification stage there would be a presumption of shared confidences rebuttable by appropriately built Chinese Walls. This type of approach to disqualification achieves a better balance of the competing policy interests while taking into account the realities of modern legal practice.
Keywords: conflict of interest
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