As a lawyer, you have a legal duty to act in your client's best interests and put those interests ahead of other people. This means that you have an obligation to avoid conflicts of interest.  

How conflicts of interest can arise

Conflicts of interests can arise if you act:

• for a client where your personal interests or those of someone close to you conflict with your client’s interest
• for two or more current clients whose interests conflict 
• against a former client, particularly if you hold confidential information that could be relevant to your current client’s matter.

In these scenarios you have a duty of care to look after your clients’ best interests. At a minimum this means informing them of the conflict of interest. However, simply telling your client about the conflict may not be enough. Depending on the type of conflict you may be required to not act or stop acting for a client. You need to identify and address potential conflicts before you accept a matter and continue to monitor for conflicts as a matter proceeds.

Acting against a former client

The lawyer-client relationship does not completely end when a legal matter concludes or when a client changes their lawyer. Lawyers and law practices have ongoing duties to former clients, most obviously the duty of confidentiality.

Lawyers and law practices have an obligation to avoid conflicts between the duties they owe to their current clients and the duties they owe to their former clients. For example, if a lawyer or law practice has knowledge of confidential information about a former client, they should not act against the former client in any matter where that specific information is material to the matter and detrimental to the interests of the former client if disclosed.

There are limited circumstances in which a lawyer may act, including where the former client has given informed consent to the disclosure and use of the information, or where an effective information barrier has been established.

Managing conflicts of interest

You must be able to advise and act for your clients independently and in their best interests without compromising your duties to another current or former client. When considering whether a conflict of interest may be present in a case you are acting on, consider the following questions:

• Do you have a personal, financial or other interest that could influence the extent to which you act in your client’s best interests?
• Are you acting for more than one client, and is there a risk of conflict of duties arising now or as the matter progresses?
• Are there barriers preventing you from properly advising your client in terms of the strength of their case without acting against the best interests of another client?
• In criminal proceedings involving more than one client, does one client have a defence which would possibly incriminate the other client or be detrimental to their interests?
• Is there any confidential information received, or which might be received, on behalf of one client which may other be material or detrimental to another current or former client’s interests if disclosed?

If you answered yes to one or more of the above questions, then there is likely to be a conflict of interest that you need to carefully assess. Whether you can act or continue to act for your clients will depend on the nature of the conflict and the applicable conduct rule. It's important to disclose such conflicts to the affected clients and ensure they have a thorough understanding of the risks associated. 

In some circumstances, obtaining informed consent (in writing) from the clients involved may permit you to act; in others, additional requirements may be required, or you might need to cease to act on the matter.

Resources

The duty to avoid conflicts of interest concerning former and current clients are set out in Rules 10,  11 and 12of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Cth).

Acting in criminal proceedings

If you’re a Victorian solicitor practising criminal law, use the below resources to help you assess and manage potential conflicts of interest where you are acting for more than one client in a matter.  

• Guidance on conflicts of interest in criminal practice: this will help you assess whether a conflict of interest may arise, and what options are available.  
• Template: client assessment and consent form: if you're proposing to act on behalf of two or more clients in related matters, use this template to support client conversations and record your client’s informed consent where required.
• Template: conflicts of interest in criminal practice template client note]: provide this to your client to help them understand potential conflicts of interest, their rights and some scenarios where conflict can occur.

Consumer information

Information for consumers of legal services can be found on the does my lawyer have a conflict of interest? web page. We encourage you to share this information with your clients.

Ethics advice

•    Law Institute of Victoria's ethics and practice support line 
•    Victorian Bar's Ethics Committee