Ethics Column

by Gino Dal Pont, Professor, Faculty of Law, University of Tasmania

The recent decision in Dyer v Chrysanthou (No 2) [2021] FCA 641 presents as a useful reminder of the purview of successive conflicts rules.

Merely because the lawyer in question deposes to absence of confidential communications within a retainer is not determinative.

Preservation of client confidentiality takes paramountcy in this regard.

I would not ordinarily devote an entire ethics column to an individual case, but I make an exception on this occasion in the face of Thawley J’s June 2021 decision in Dyer v Chrysanthou (No 2). [1] In part, this stems from the notoriety of the case in the media and broader public circles, largely because it was spawned against the backdrop of serious allegations against a senior Federal government Minister, Mr Porter. The latter pursued defamation proceedings against the national broadcaster (the ABC), and retained the respondent barrister as counsel. Some have surmised that Thawley J’s order restraining the respondent from acting for Mr Porter might have proven a factor that prompted Mr Porter to discontinue the action, indeed only four days after that ruling.

The judgment in Dyer is instructive in bringing together questions of retainers, lawyer confidentiality and successive conflicts. In November 2020, the applicant had sought advice from the respondent concerning potentially defamatory imputations in a newspaper article. These arose out of a broadcast on Four Corners — itself the subject matter of Mr Porter’s defamation claim — wherein the applicant had been interviewed. The article alleged that the Four Corners broadcast omitted reference to the applicant’s links to the Labor party, thus suggesting that she had provided comment out of partisan political views. Ultimately, the applicant did not pursue the matter, and on 10 March 2021 the respondent accepted the brief from Mr Porter.

The applicant’s primary argument in seeking to restrain this engagement focused on the danger of misuse of confidential information received by the respondent in the context of her dealings with the applicant. This argument required Thawley J to address several matters. The first, most fundamentally, was whether a lawyer-client relationship (had) existed between the applicant and the respondent. Beyond the initial conference, there were multiple emails in a trial to which the respondent was a party. His Honour had no difficulty in finding that the respondent ‘acted and communicated at the time of the events in a way which was consistent with a barrister acting on a pro bono basis’.[2]

Though at trial ultimately conceding that a retainer existed, Mr Porter sought to argue that no relevant confidential information was imparted under its umbrella. Accordingly, Thawley J needed to make findings as to what was said at the conference, which the instructing solicitors attended. Resisting Mr Porter’s invitation to favour the account of the respondent, his Honour found that ‘her recollection was not good’ and ‘was demonstrated to be incorrect in a number of ways’.[3] He favoured the accounts of the instructing solicitors and the respondent, which spoke of confidential information, including ‘impressions … inevitably formed by [the respondent] in connection with particular facts, some of which were confidential’.[4] That the respondent disclaimed any present recollection of the said information did not dictate an alternative conclusion.

The next stage in the analysis was an inquiry into whether the respondent was, by taking the brief from Mr Porter, acting ‘against’ the applicant in the requisite sense. Of course, the applicant was not an opposing party to Mr Porter’s defamation proceedings, and so in a strict sense the respondent was not acting against a former client. Yet the relevant proscription in this context is not so circumscribed. As Thawley J observed, a conflict arises in any situation where a lawyer ‘uses confidential information obtained in the confidence and privilege of the lawyer-client relationship without the client’s informed consent, particularly where the use of the information may be regarded as against the client’s interests, whether legal or otherwise’.[5]

It was, after all, ‘reasonably possible’ that the applicant could be called as a witness in Mr Porter’s action.[6] But the restraint was not confined to this prospect. The relevant conflict arose, explained his Honour, because the respondent ‘obtained information through her dealings with the ABC which was not publicly available and which was confidential so far as [the applicant] was concerned’.[7]

A number of matters of significance emerge from the above. First, the existence of a retainer is not approached purely from the perspective of the lawyer in question. Second, a court will not simply accept a lawyer’s account when it comes to the contents of communications with a putative client, nor pronouncements that the lawyer has no recollection thereof. Third, the concept of ‘confidential information’ is not amenable to being narrowly circumscribed. Fourth, a conflict is actionable when needed to preserve the confidentiality of information; that the former client is not a party to the subsequent proceeding is no reason by itself to preclude disqualification.

While none of these matters is unheralded in the case law — to the contrary, rather —the decision serves as a timely reminder of the sensitivities underscoring the curial jurisdiction to disqualify a lawyer from acting against a former client.

End notes

1 [2021] FCA 641.

2 Ibid at [79].

3 Ibid at [87].

4 Ibid at [101].

5 Ibid at [104].

6 Ibid at [105].

7 Ibid at [106].