Navigating Legal Boundaries: The Right to Choose Your Lawyer

In our modern democratic society, some of the freedoms we cherish are the right to vote for a political party of our choice, to use a doctor whom we think will best care for our health, to have dental work done by a dentist of our choice and to retain a lawyer in whom we have confidence and will best act to represent us, either in a civil or criminal matter.

However, our freedoms are subject to certain terms and conditions, particularly in relation to appointing a lawyer to act on your behalf. The courts retain the ultimate jurisdiction to determine whether your choice of lawyer is appropriate and can be sustained, or whether the legal practitioner should be injuncted from acting on your behalf.

The law sets a stringent standard of conduct for lawyers, who must have a duty to the court and to the administration of justice as their primary and paramount consideration. Legal practitioners must act in the best interests of their client, be honest and courteous in all their dealings in the course of legal practice, not place themselves in a situation where they have a conflict of interest, and refrain from engaging in conduct which may diminish public confidence in the administration of justice or bring the legal profession into disrepute.

I have engaged in legal practice for approximately 50 years and worked on many cases, but have never been restrained or injuncted from acting on behalf of a client until a recent experience in the Federal Circuit and Family Court of Australia. An order was made that I be restrained from acting on behalf of a party to the proceedings, because it was the opinion of the judge that my continuing to act prejudice the administration of justice.

For many years, I had acted for a client and prepared a Binding Financial Agreement between herself and her husband. After many years of marriage, the husband and wife separated and an application was made to the Federal Circuit and Family Court of Australia to set aside the Binding Financial Agreement.

As I was the solicitor who drafted the Binding Financial Agreement, it became apparent that I may be subpoenaed to give evidence at the hearing. A dispute arose between the parties on the interpretation of section 27.2 of the Australian Solicitors’ Conduct Rules 2015, which states:

‘In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor … or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice.’

Upon the application of the husband that I be injuncted from acting for the wife, as I may be called to give evidence, the Court was asked to determine whether the right of the client to choose her own legal representation should be disregarded, if my continuing to act on her behalf may prejudice the administration of justice (whatever that means).

Ultimately the judge applied the ‘reasonable man test’ which states: ‘with respect to the fair-minded, reasonably informed member of the public – what might that member of the public conclude'. The Court ultimately concluded that I could not continue to act for the wife where I may be required to give evidence, and accordingly, the injunctive relief sought by the husband was granted.

Similar injunctions can be granted in other cases not involving the giving of evidence, where allowing a solicitor to continue acting may create a public perception that the administration of justice may not be dispatched fairly and with impartiality.

In the recent decision of Ogilvie & Farnam [2024], the Federal Court and Family Court Judge McGinn injuncted the husband's solicitor from continuing to act on his behalf because she was his 'intimate partner'. The court found that the solicitor had an overriding duty to the Court, which could not be fully discharged when she was in an intimate personal relationship with a party to the proceedings.

Again, Judge McGinn applied the relevant test, namely: 'whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice'.

Ultimately, the Court decided that it may appear that the administration of justice may be prejudiced if one party to the legal proceedings was represented by his intimate partner, so an injunction was granted.

There are many other examples where a party may not be permitted to be represented by their lawyer of choice. Ultimately, it is for the Court to apply the test in the interests of protection of the integrity of the legal process and the appearance of justice. In those occasions, the greater good is served, even if the individual rights of some litigants are disregarded.

At the end of the day, there are plenty of more-than-competent lawyers to represent people in court, but there is only one system of justice, the integrity of which needs to be protected.