Hanna v National Library of Australia [2004] ACTSC 75

4. He deposes that the present plaintiff was the plaintiff in Federal Court proceedings 52 of 1998 to which the defendant in these proceedings was respondent. He had instructed Messrs Phillips Fox, solicitors, on his behalf. The defendant was represented by the Australian Government Solicitor. The solicitor with carriage of his matter was Mr Paul Vane-Tempest. The matter was settled but, about 4 weeks before the settlement, Mr Vane-Tempest left the employ of Messrs Phillips Fox. He then became a partner in Blake Dawson Waldron. That firm was, in 2003, instructed to act for the defendant in these proceedings.

5. The connection between the two matters, Mr Hanna alleges, is that the defendant, in the current proceedings, pleads that the settlement of the 1998 Federal Court proceedings bars the plaintiff from taking these proceedings. Although Mr Hanna stated he was the plaintiff in those proceedings, the pleadings assume that it was his company, the present plaintiff, which was the party. I have made that assumption for present purposes, though nothing turns on it as Mr Hanna is clearly the directing mind and will of the plaintiff.

6. Mr Hanna asserts that the defendant's solicitors consequently have a conflict of interest which should preclude them from acting for the defendant.

7. A letter from the plaintiff's solicitors makes it plain that, though it is asserted that Mr Vane-Tempest has "extensive and intimate knowledge" of the earlier proceedings, it is not suggested that he had inappropriately disclosed or offered to disclose any such knowledge. It also appears that on 7 May 1999, Mr Hanna discussed with Mr Vane-Tempest his change of firm. Mr Hanna was supportive of his matter going with Mr Van-Tempest to Blake Dawson Waldron but the managing partner of that firm denied the request.

8. It is not challenged that no relevant solicitor acting for the defendant has sought or will seek to obtain any relevant information from Mr Vane-Tempest. Indeed, the defendant has expressly authorised Blake Dawson Waldron to refrain from seeking any such information. The relevant partner has offered a written undertaking to that effect.

9. I am prepared to assume that Mr Vane-Tempest may well have had confidential information imparted to him between 1998 and May 1999 relevant to the present litigation. I am satisfied, however, that he has not and will not disclose any such information to the defendant or any person acting for or on behalf of the defendant. I am further satisfied that, whether it could or not, the defendant will not require Blake Dawson Waldron to seek to obtain any such information.

10. Mr Erskine, for the plaintiff, submitted that, not withstanding those assurances, the possibility of accidental disclosure could not be precluded and, in any event, it was an overriding consideration that the public perception that there was a conflict of interest necessitated the order sought. That aspect, the "duty of loyalty", Mr Erskine acknowledged, was controversial. Nevertheless, he submitted, there was a real risk of "seepage" of confidential information undoubtedly held by Mr Vane-Tempest, not deliberately, but through "letting slip of some information which is not thought to be relevant but may make the link in a chain of causation or reasoning". The maintenance of "Chinese walls" is, he submitted, no sufficient guarantee.

11. Mr Meagher, for the defendant, pointed to the lack of specificity in the possibly confidential information Mr Vane-Tempest may have possessed in 1999. He contended that the three bases for disqualification Mr Erskine referred to should be rejected. He agreed that there was a duty on the part of the former solicitor to protect confidential information of the former client but contended that that was the only basis for the making of the order sought.

12. The mere fact that confidential information does or may well repose in the former solicitor is not enough, Mr Meagher contended. It must be necessary to intervene to protect confidentiality. Given the instructions of the defendant and the undertakings by the responsible solicitors there was no real risk of disclosure and hence no need for intervention. There must be "a reasonable probability of real mischief".

13. It is useful to refer to some of the authorities on the matter.

14. In Prince Jefri Bolkiah v KPMG [1998] UKHL 52; [1999] 1 All ER 517 (HL) the plaintiff had previously engaged the defendant accounting firm in support of litigation to which he was a party. The firm gained substantial access to confidential information. Its duty to preserve confidences was accepted as being equivalent to that of legal advisers. Over 168 of its personnel were involved. Subsequently, shortly after that litigation ceased, the firm was engaged by the Brunei Government to investigate the plaintiff's conduct concerning his management of the body the subject of the previous litigation.

15. The firm, aware that they possessed confidential information, erected a "Chinese wall" to avoid disclosure of the confidential information to those members of the firm acting for the Brunei Government.

16. The House of Lords considered that there should be intervention to protect the plaintiff's right of confidence.

17. Lord Millett, at 527, explained the basis for such intervention -

... The court's jurisdiction cannot be based on any conflict of interest, real or perceived, for there is none. The fiduciary relationship which subsists between solicitor and client comes to an end with the termination of the retainer ... The only duty to the former client which survives the termination of the client relationship is a continuing duty to preserve the confidentiality of information imparted during its subsistence.

18. It should be borne in mind that the "continuing duty" is imposed, not merely on partners but on every member of the relevant firm or company, whether solicitor, clerk or support staff, who has such information. However, the duty is not absolute. It does not extend to the avoidance of merely remote possibility of accidental disclosure.

It follows that in the case of a former client there is no basis for granting relief if there is no risk of the disclosure or misuse of confidential information.

20. The test their Lordships endorsed was that - (528)

... the court should intervene unless it is satisfied that there is no risk of disclosure. It goes without saying that the risk must be a real one, and not merely fanciful or theoretical. But it need not be substantial. ...

21. In my opinion, it is entirely proper that the burden on those with confidential information to protect it should be high. Public confidence and the encouragement of candour in clients with their legal and similar advisers demands no less. I also agree that it is irrelevant that intervention might be commercially damaging to the firm employing a professional with pre-existing confidential information or whose prior relationship with the client had long since terminated.

22. What then of the so-called "Chinese walls"? The construction of such a wall in the present case was not considered adequate. In Lord Millett's view, to be effective such a wall should involve -

... (i) the physical separation of the various departments in order to insulate them from each other - this often extends to such matters of detail as dining arrangements; (ii) an educational programme, normally recurring, to emphasis the importance of not improperly or inadvertently divulging confidential information; (iii) strict and carefully defined procedures for dealing with a situation where it is felt that the wall should be crossed and the maintaining of proper records where this occurs; (iv) monitoring by compliance officers of the effectiveness of the wall; (v) disciplinary sanctions where there has been a breach of the wall.

23. I would note, however, that the above, whilst called for in a case such as Prince Jefri Bolkiah, that is, the case of a large firm with many members recently involved in his affairs, it may not be necessary where, as here, only one individual possesses the information and is very conscious of the need to preserve strict confidentiality. So also, I would add, are the members of the firm dealing with the potential beneficiary of that information and that beneficiary itself.

24. Steytler J had a not dissimilar case in Newman v Phillips Fox (1999) 21 WAR 309.

25. As his Honour noted (at 316 [28]), solicitors have the obligation to put at their client's disposal not only their skill but also their knowledge. Hence a client instructing a lawyer in possession of previous knowledge, even if confidentially imparted by a current opponent has, unless excused by the current client, an obligation to place that confidential knowledge at the disposal of the new client. That is, plainly, if allowed to occur, a conflict of interest, ordinarily to be resolved by refusal of the new instructions. That is not to say that each solicitor in a firm is automatically assumed to have knowledge of the possession of such information by another member of the firm (see pp. 316-7 [29-33]).

26. In addition, his Honour noted the general public policy concern that "any person should be entitled to seek and obtain legal advice in the conduct of his or her affairs without the apprehension of being prejudiced by any later breach of confidence" (see 318-320 [38-47]).

27. As against that, of course, the fact that a lawyer tainted by possession of confidential information in conflict with a former client's interests, is seen to be isolated behind an apparently effective "Chinese wall" would tend to support confidence in the continued protection of confidential information.

28. In the result, Steytler J accepted that the Prince Jefri Bolkiah test should be applied.

29. In the instant case, however, despite the undertakings to preserve confidentiality of the former client's information and the erection of a "Chinese wall", his Honour was not satisfied that relief should be refused. At 325 [77-80] he said -

The "wall" which has been proposed by the respondent in this case falls, in my opinion, short of what is required. Like that in Bolkiah it is proposed only to be established ad hoc. It will be unaccompanied by any educational programme or procedures of the kind discussed in Bolkiah_. Nothing has been proposed with respect to monitoring and record keeping and nor is there any proposal with respect to the imposition of disciplinary sanctions._

It is, as I have said, proposed that Mr Hely is to become a partner at Phillips Fox. It can consequently be assumed that there is and will be frequent interaction, both professional and social, between him and others at Phillips Fox. It would also be unreasonable to expect that there will not be interaction between Mr Coyle, as a senior associate, and others at Phillips Fox. The two articled clerks will, as part of their training, no doubt be exposed to a range of different types of work and, consequently, personnel at Phillips Fox. They can be expected to mix with other articled clerks and young practitioners at that firm. They can also be expected, as is the case with other young practitioners, to share experiences and to exchange advice.

The position is exacerbated by the fact that no adequate safeguards appear to have been considered as regards the administrative staff formerly employed by Hely Edgar who are now in the employ of Philips Fox and who may themselves have been the recipients of confidential information. There is no reason to assume that they will not come into contact with a range of different people at Phillips Fox.

There is, in my opinion, consequently a risk of inadvertent disclosure of the kind considered in the cases to which I have referred notwithstanding the best intentions of the lawyers concerned and the impeccable standing of both firms.

30. Of course, in that case, an entire firm had merged with the much larger Phillips Fox. The risk of inadvertent disclosure was, therefore, exacerbated by the number of persons who had confidential information.

31. Spincode Pty Ltd v Look Software Pty Ltd and Others [2001] VSCA 248; (2001) 4 VR 501 was, perhaps, a more egregious example. Solicitors continued to act for a company after disputes arose between the five shareholders with whom the solicitors had effectively dealt with previously. It was found by the Court of Appeal that the risk of misuse of confidential information had not been excluded. Thus an injunction to exclude the solicitors from acting was found warranted. However, a wider question was addressed, that is, "When may a solicitor change sides?" (508 [26]).

32. In the opinion of Brooking JA (Ormiston and Chernov JJA agreeing) the answer to that question does not arise merely from the possible misuse of confidential information. There is also a "duty of loyalty" arising out of the original contract of retainer not to act against the former client in any future or further litigation arising, at least, out of the same matter irrespective of the existence of confidential information respecting the former client. His Honour cast this obligation broadly, saying at 524-525 [58] -

If I thought that the solicitors in this case were subject neither to a negative equitable nor to a negative contractual obligation, I would say that what has been done by them - and I would have regard to the whole of their conduct here - is so offensive to common notions of fairness and justice that they should, as officers of the court, be brought to heel notwithstanding that they have not (on this hypothesis) infringed any legal or equitable right. The authorities supporting this approach need not be mentioned again. It may be that one should refer to this head, rather than that of misuse of confidential information, the advantage that McPherson + Kelly would have by reason of their knowledge of such things as the personalities and reactions of the participants and what changes may have taken place in the past as regards what Kirton in his diary note called "allegiance". I am not deterred by the suggestion that, once infringement of legal or equitable rights ceases to mark off what may be proscribed, solicitors and their would-be clients will be subject to a great and unfair uncertainty, being unable to say in advance what view the court will take. No experienced solicitor of sound judgment would have done what has been done in this case. And in my view the nature and objectives of the jurisdiction which the court exercises over its officers, and the breadth of the discretion, permit regard to be had, not only to the nature of the dispute before litigation ensued, and the former retainer, and the new one, but also to the conduct of the solicitors at all stages. This includes the partisan approach of Kirton when he acted for the company and his undisclosed attempts to serve Moore's interests, the peremptory and unseemly way in which the solicitors changed sides, their denials that it was the company which had been their client and the uncandid affidavit of Kirton in which he tried to give the impression that the company had not been the client. It would, as they used to say, be pessimi exempli if McPherson + Kelly were not called to account.

33. This case is strong authority for the view that, irrespective of the risk of disclosure of confidential information, a solicitor is bound by a continuing duty not to act against a former client in respect of any matter related to the prior matter. In that respect, it seems to me, it should be borne in mind that even the character and past history of the client may be relevant, even to otherwise unconnected litigation, where the credit of the former client or the vulnerabilities and strengths or that client may be of use to those conducting the subsequent litigation.

34. The view expressed by Brooking JA was rejected by Young CJ in Eq in Belan v Casey [2002] NSWSC 58. His Honour considered that Prince Jefri Bolkiah should be followed. There must be considered to be a "real risk of breach of the duty to hold information confidential".

35. His Honour considered that Ormiston and Chernov JJA did not support Brooking JA's judgment as to the "duty of loyalty".

36. It is true that, whilst not disagreeing with that aspect of the judgment, Ormiston JA did not overtly support it. He did say at 525 [61] -

...If I had had the luxury of further time to consider them, I may have reached agreement with Brooking JA on each of those aspects ....

37. However, Chernov JA was not so reserved, though he did say at 526 [63] -

I have had the considerable benefit of reading the draft reasons for judgment of Brooking JA and, essentially for the reasons there expressed, I agree that the appeal should be dismissed.

and also -

It is not necessary to decide for the purposes of this appeal whether there is an absolute obligation on solicitors not to act against their former clients in the same or substantially the same proceeding, although, if I may say so with respect, the learned judgment of Brooking JA makes a compelling case for such a view.

38. It may be noted that, in Prince Jefri Bolkiah the House of Lords forbad the solicitors from acting because of the risk of revelation of confidential information, even inadvertently.

39. That does not necessarily exclude as, at least a relevant matter, the existence of a fiduciary obligation of loyalty to the former client or, more importantly, of the relationship between the two. It is of some importance, albeit Young CJ in Eq decries it as per incuriam, that Callaway and Batt JJA in McVeigh & Anor v Linen House Pty Ltd & Rugs Galore Australia Pty Ltd & Ors [1999] VSCA 138; [1999] 3 VR 394 affirmed a duty of loyalty to former clients in respect of litigation arising out of the same matter.

40. Their Honours placed reliance not only on the obligation to safeguard confidential information [23] -

... but also to ensure that the solicitor's duty of loyalty to the former client is respected, notwithstanding termination of the retainer, and to uphold as a matter of public policy the special relationship solicitor and client.

41. This is most obviously applicable to a case in which a solicitor, being engaged by two clients having a common interest, finds that they have fallen out and is approached to act for one of them. Even so Young CJ in Eq noted at [21]-

... the overwhelming weight of authority is to the effect that where the applicant to restrain a solicitor is a former client, the sole consideration is whether there is a real risk of disclosure of confidential information and one does not delve into matters of conflict of interest or conflict of duty. In other situations this delving may well be material. (emphasis added)

42. It may be noted, in that case, that his Honour was satisfied that there had been no confidential information at risk of disclosure. That does not mean to say that other aspects of the previous solicitor/client relationship might not be relevant to the apparent propriety of the solicitor opposing a former client.

43. An application to disqualify a solicitor was refused in Gugiatti v City of Stirling [2002] WASC 33; (2002) 25 WAR 349. The plaintiff sued the City which was represented by McLeods, solicitors. One of the partners, Mr Denis McLeod had been a partner in another firm, McLeod & Co. That firm had acted for the plaintiff between 1990 and 1994 in a previous but related dispute. The current action was commenced in 1997. The plaintiff sought to restrain McLeods on the basis that Mr Denis McLeod, in his previous firm, had received confidential information. There was no evidence identifying that information, although for the purposes of the application the solicitor disclosed, without consent, the former client's files so that not merely the court, but also the City, got to see them.

44. Nevertheless, his Honour was able to conclude, despite detail as to the allegedly confidential information not being given, that - (357, [56])

... a reasonable bystander would [not] consider that his claim ... could be prejudiced by the City's knowledge of confidential information given to Mr McLeod between 1991 and 1994, even if Mr McLeod could remember it.

His Honour continued - [57] - [59]

I can see that there is at least a risk that the City might make use of the material in McLeod's files to cross-examine him as to credit in his claim for damages. However, I think that risk can be eliminated by requiring the City to return to Mr Gugiatti's present solicitor the copies of the ... files ....

Furthermore, McLeods should be required to undertake that no material in the files to which privilege attaches will be used against Mr Gugiatti in the pending action.

I think that the possibility of Mr McLeod's recollection being refreshed, should be eliminated by requiring him not to disclose any confidential information given to him by Mr Gugiatti to any member or employee of the firm. I appreciate that the courts have generally been against the construction of "Chinese walls", particularly in small firms such as McLeods which has only seven partners. This is, however, an unusual case in the sense that Mr McLeod is the only person now in the firm with whom Mr Gugiatti dealt. Mr McLeod is therefore the only person who needs to be quarantined in the way I propose.

45. Two relevant observations may be made. First, is that Mr Vane-Tempest, like Mr McLeod, is the only person with any relevant information and he has taken no file or other documents with him from his previous firm. It is only his knowledge, if any now remains, that needs to be quarantined.

46. Second, it is relevant to note his Honour's conclusion that a suitable quarantining of Mr McLeod and undertakings by him and other members of his current firm not to seek out or seek to make use of any confidential information would suffice. That conclusion was expressed in the context of the principle adopted, not only in Prince Jefri Bolkiah's case, but also on the "further principle" referred to, inter alia, in McVeigh v Linen House Pty Ltd (supra) which his Honour summarised and then qualified, as follows - (351) [10] - [12]

In other words, if a solicitor adopts a hostile position against a former client in the same or a related matter he should be restrained from acting because that of itself is a breach of professional duty. That of itself is likely to undermine the trust and confidence of the community in the legal profession.

There are, however, two qualifications to this principle. First, that the case is not "rare and very special" [that is, that it is not a case "where the one solicitor, having acted for both parties, seeks to act against one of his former clients, and in the interest of a preferred client, in litigation arising out of the very matter in which he himself acted for both" - see Wan v McDonald [1992] FCA 4; (1991) 33 FCR 491, 513 per Burchett J].

Secondly, as Malcolm CJ said in Fordham_, a solicitor may assume a hostile relationship against a former client if such conduct would not give rise to an apprehension of impropriety in the mind of a reasonable bystander._

47. In passing, I also note that his Honour, as I did in the course of the hearing, considered it inappropriate for the former client to detail the confidential information imparted to the former solicitor but simply found himself satisfied, on the evidence available, that confidential information relevant to the current proceeding was, on the balance of probabilities, imparted to the former solicitor.

48. It was apparent in that case that the solicitor could not recall any such information. It was not in written form. Thus, on that material, his Honour found - 357 [56] [57]

... I am not persuaded that a reasonable bystander would consider that his claim against the City arising from damages he suffered in 1996, could be prejudiced by the City's knowledge of confidential information given to Mr McLeod between 1991 and 1994, even if Mr McLeod could remember it.

I can see that there is at least a risk that the City might make use of the material in McLeods' files to cross-examine him as to credit in his claim for damages. ...

49. The remedy, his Honour considered, was the surrender to the plaintiff's current solicitors of any such files and any copies thereof and the giving of an undertaking by the solicitor not to disclose any confidential information that he might recollect.

50. I also note that there is a more recent decision by Young CJ in Eq, British American Tobacco Australia Services Ltd v Blanch [2004] NSWSC 70 (20 February 2004). In that case, the solicitors in question had, at the behest of its insurer (Allianz) represented the plaintiff (BATAS) in tobacco-related litigation. There was settlement, then, of an asbestos claim against an employer, another insured of Allianz. There was an issue as to whether that damage had been contributed to by the claimant's smoking for which BATAS could be sued. The solicitors for the employer, on the instructions of Allianz, cross-claimed against BATAS for contribution. BATAS objected on the ground that the solicitors had prejudicial confidential information from it acquired as its solicitors in the tobacco related litigation. The solicitors took the view that they had always acted only for Allianz and owed no duty to BATAS.

51. That spurious contention was firmly rejected. There was no need, his Honour found, to go beyond the basis for intervention identified in Prince Jefri Bolkiah (supra). It made no difference to the fiduciary duty of the solicitors to BATAS that their relationship arose out of the solicitors' retainer by Allianz.

52. As to the "additional basis", beyond protection of confidential information, relying on the power to control the proper conduct of solicitors to prevent conflict of interest and the reasonable perception by the public of adherence to such proper conduct, his Honour was referred to the view expressed in Spincode (supra) by Brooking JA, subsequently applied in Sent v John Fairfax Publication J Pty Ltd [2002] VSC 429 by Nettle J. Whilst acknowledging that - [105]

It may be that there are some exceptional cases where equity will give relief in favour of a former client where there is no confidential information present. However ... there is still no rule forbidding a lawyer acting against a former client. ...

53. His Honour, nevertheless adhered to his previous opinion but, significantly subject to two "riders". The first is that expressed by Kirby J in Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467 (solicitor cross-examining former client on matters disclosed in previous proceedings). [111] "The heart of the professional wrong is the act of disloyalty". Further, his Honour noted, "confidential information" may include "a client's forensic tactics and strategies". [113]

54. Even where much of the material given to the solicitor is publicly available, the prior collation of it and knowledge of the accessibility of such information may itself be worthy of protection.

55. In my view, there may be cases where the very rapport created between solicitor and client may render it inappropriate for that solicitor to act contrary to the interests of that former client where, for example, the credit of that former client may be put in issue. The Court should, in my view, act to prevent a conflict of interest between a solicitor and a former client. Primarily and usually, that will be to protect the confidential information imparted by the client of which it can be assumed the solicitor remains in possession. In addition, there may be exceptional cases where the relationship has had qualities beyond the mere reposal of confidential information but, analogously with a close friendship or relationship, would or would appear to be a breach of an obligation of loyalty which breach would be regarded as reprehensible conduct by the same reasonable impartial observer called in aid to adjudge judicial conflict of interest.

56. It is equitable relief, of course. It can be declined, depending on the degree of prejudice to the former client, on the ground of acquiescence or delay. Uniqueness of the lawyer's skill and experience is unlikely to suffice as a reason for refusing relief.

57. That said, the twin objectives of the relief now sought is to protect the former client's confidential information, including knowledge of tactics, vulnerabilities and the like, and to support public confidence in the legal profession's adherence to the confidentiality of client information and the duty to prefer the client's interests to their own. Thus, a client must be assured that the relationship of solicitor/client cannot result in the solicitor using the fruits of that relationship to that client's disadvantage.

58. There have been numerous cases discussing Prince Jefri (for example, World Medical Manufacturing Corp v Phillips Ormonde & Fitzpatrick Lawyers [2002] VSC 196 (18 May 2000); Colonial Portfolio Services Ltd v Nissen [2000] NSWSC 1047 (7 November 2000); A & B Legal Practitioners v Disciplinary Tribunal [2001] TasSC 55 (15 May 2001); Waiviata Pty Ltd v New Millenium Publications Pty Ltd [2002] FCA 98 (15 February 2002); Bureau Interprofessionnel Des Vins De Bourgogne v Red Earth Nominees Pty Ltd [2002] FCA 588 (9 May 2002); Rothschild v Mullins & Anor [2002] TASSC 100 (15 November 2002).

59. Of those I mention in more detail only Rothschild v Mullins (supra) which involved a solicitor who became a DPP prosecutor. The DPP prosecuted a former client of the solicitor. She disclosed that the accused had been a client of hers and undertook, with the concurrence of the DPP, to disclose no information concerning the client. That is a clear case of a potential breach of duty and a perceived risk of disclosure being satisfactorily removed.

60. In the present case, there is no suggestion that Mr Vane-Tempest left Phillips Fox at a time when Blake Dawson Waldron were solicitors for the plaintiff. The defendant's solicitors had no connection with the litigation. It is only now that, the plaintiff having revived the dispute, the defendant has sought representation from coincidentally, the firm Mr Vane-Tempest has joined. Those instructions were given and accepted, I accept, without knowledge of the possession by Mr Vane-Tempest of confidential information.

61. Mr Vane-Tempest has not been involved in the current litigation. He has not and promises by way of undertaking not to discuss the case or anything connected with it with those dealing with the litigation. Those dealing with the litigation also undertake not to discuss the case with Mr Vane-Tempest. The defendant consents to these undertakings being given and it undertakes to respect them.

62. In these circumstances, it seems to me, there is no credible risk of confidential information, even of a tactical kind, being revealed to the defendant or those lawyers and others acting on its behalf. It further seems to me that these restraints and the knowledge of them removes any likelihood that the hypothetical reasonable bystander would consider that Mr Vane-Tempest's position in the firm in any way can be viewed as compromising the duty of loyalty, so far as it subsists, which Mr Vane-Tempest had assumed as a member of the plaintiff's legal team in 1996.

63. In my opinion, no further order is required. The application is dismissed. I will hear the parties as to costs.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.