Legal professionals are bound by a set of ethical rules that guide their conduct in various scenarios. A situation that often presents a challenge is determining the circumstances under which a lawyer can be restrained from acting in a particular case.

This blog post sheds light on this subject using references from precedent cases and legislation.

A fundamental concept to understand is the duty of confidentiality. This principle, as outlined in the case of Prince Jefri Bolkiah v KPMG [1999] 2 AC 222, stipulates that a lawyer is obliged to protect any confidential information provided by a client.

A lack of recollection about an earlier matter does not exempt a lawyer from this duty. It has been suggested, as in Yunghanns v Elfic Ltd (Unreported, VSC, 3 July 1998), that this confidential information could even extend to the general knowledge a lawyer gains about a client during their professional relationship, although this is rare.

The courts also possess inherent jurisdiction to prevent a solicitor from acting in a case if doing so could undermine the administration of justice. This principle, illustrated in cases like D & J Constructions and Mallesons, is rooted in the concern that public confidence in the justice system could be damaged if a lawyer is perceived to switch sides easily.

Another factor is the fiduciary duty of loyalty a lawyer owes to a former client, even after the end of their professional relationship. However, there is conflicting legal opinion on whether this duty persists after the termination of the retainer. The primary concern here is to avoid any real risk of a breach of confidence or any action that could jeopardize the judicial process.

The 1882 case Mills v Day Dawn Block Gold Mining Co Ltd dealt with the issue of proving the existence of confidence. The court decided that if a dispute arises between a solicitor and a former client over whether confidential information was shared, it's inappropriate to demand to know what the confidence was, as it could expose the client to the very harm they're trying to avoid.

In summary, a court may prevent a lawyer from acting in a case if there's a risk of breaching confidentiality, undermining the administration of justice, or violating a potential continuing duty of loyalty. The nature of the relationship between the lawyer and the client, the type and scope of the confidential information, and the potential for misuse of such information are all factors that the court will consider.