We are often approached and asked if we can represent both people in a family law matter.
Why? Because many of the clients we help are amicable (to varying extents). This means they will often assume that they can share the same family lawyer.
The simple answer however is no you cannot hire the same family lawyer even in the most amicable of situations.
As a family lawyer, if we were to act for both the husband and wife or de facto couple, this would be in violation of our ethical duties and what is known as a ‘conflict of interest’.
A conflict of interest can arise where there are competing interests between two or more people.
A lawyers ethical duties and rules around conflicts are established by the Australian Solicitors’ Conduct Rules (Rules), and all lawyers are bound by these Rules.
Broadly speaking, all lawyers have three core ethical duties:
1. A duty to the court;
2. A duty to their client; and
3. A duty to obey the law.
The Rules provide a clear guide to lawyers around acting ethically.
What do the Rules say about conflicts?
The Rules specifically around conflicts when acting for two or more clients says that:
1. A lawyer and a law practice must avoid conflicts between the duties owed to two or more current clients, except where permitted by this Rule.
2. If a lawyer or a law practice seeks to act for two or more clients in the same or related matters where the clients’ interests are adverse and there is a conflict or potential conflict of the duties to act in the best interests of each client, the lawyer or law practice must not act, except where permitted by Rule 11.3.
3. Where a lawyer or law practice seeks to act in the circumstances specified in Rule 11.2, the lawyer may, subject always to each lawyer discharging their duty to act in the best interests of their client, only act if each client:
1. Is aware that the lawyer or law practice is also acting for another client; and
2. Has given informed consent to the lawyer or law practice so acting.
4. In addition to the requirements of Rule 11.3, where a lawyer or law practice is in possession of confidential information of a client (the first client) which might reasonably be concluded to be material to another client’s current matter and detrimental to the interests of the first client if disclosed, there is a conflict of duties and the lawyer and the lawyer’s law practice must not act for the other client, except as follows:
1. A lawyer may act where there is a conflict of duties arising from the possession of confidential information, where each client has given informed consent to the lawyer acting for another client;
2. A law practice (and the lawyers concerned) may act where there is a conflict of duties arising from the possession of confidential information where an effective information barrier has been established.
What if a lawyer or law practice violates the Rules?
There can be serious consequences if a lawyer or law practice is found to have acted unethically and breached any of the Rules. This can include fines, losing their ability to continue to practice and in the most serious of situations, jail time.
Exceptions to the Rules
The Rules do provide some limited exceptions when a lawyer or law practice may be able to represent any other party who has interests different to a current or previous client. These circumstances can be summarised as, when both parties:
– Are aware that the lawyer is also acting for another client; and
– Have given informed consent; and
– Establish effective information barriers.
Even if all of the above steps have been obtained, a lawyer or law practice may still not be able to represent any other party due to the potential or perceived conflict of interest.
At Martens Legal our view is that, even if these exceptions were fulfilled, it would never be enough for us to be able to ethically act for both people in a family law matter, even an amicable one.
How does Martens Legal make sure no conflicts exist?
We have processes and systems in place for checking for possible conflicts before we engage a new client. This is both at the start and over the course of a matter.
1. Screening and conducting searches of all people connected to the matter. This would ordinarily include the new enquiry as well as the other party but could also include other family members or people who have an interest in the matter;
2. Recording all searches to our practice management system database. At a click of a button, the details are then accessible and stored indefinitely (How good is technology!);
3. A process for addressing any possible conflicts with relevant team members and new enquiries;
4. Circulating a new enquiry list each week, so the team can review the list and report back on any potential conflicts; and
5. We ensure the entire team is trained on the necessity of screening, the risks of not doing so as well as the processes and systems.
Family lawyers have ethical obligations to avoid conflicts. This means that it is simply not possible for them to act for both people in a family law matter, even in the most amicable of situations.
There are other strategies however that we implement at Martens Legal to assist people to save on time and money. Our top 2 strategies include:
1. Encouraging people to reach an amicable agreement. Then engaging us to put that agreement into legally binding documents.
For separated couples, that document is usually called Consent Orders. These legal documents are almost always the most time and cost effective option. They also only require one person to engage a lawyer to prepare them, and if the other is content with the agreement, they may elect not to engage a lawyer of their own. We usually would still encourage the other person to engage a lawyer of their own to review the documents for peace of mind to ensure that they receive advice and fully understand the agreement, as we are unable provide that advice to them ourselves.
For people entering into agreements at at the start of a relationship or during a relationship, that document is called a Financial Agreement.
2. Providing the other person with details of other good family lawyers we have dealt with previously. This is because having 2 good lawyers assisting both people can really help to keep things simple and amicable.
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By Tegan Martens
Director & Principal Lawyer
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. You should seek appropriate professional advice based upon your particular circumstances.