Source: This article is translated and adapted from “Conflict Issues,” an English article written by our colleague at the Bar, Isaac Douglas of Counsel. The original appeared in the member contributions section of Roundtable, Autumn 2026.
This article was written by Melinda Gao Principal Solicitor at W & G Lawyers.
In family law and other litigation matters, it is not uncommon for clients to change law firms. However, when a lawyer moves from one firm to another — particularly where that lawyer has previously had access to the opposing party’s case materials — whether the new firm may continue to act for its existing client often raises serious conflict-of-interest questions.
Many firms’ first instinct may be to set up an information barrier — commonly known as a “Chinese Wall” — prohibiting the newly arrived lawyer from accessing the case files and requiring them not to take part in any related discussions.
But the question is: is that really enough?
1. The Core Problem of Potential Conflicts of Interest
When a lawyer leaves their former firm and joins a firm that is acting for the opposing party, a court may focus on whether that lawyer previously had access to the former client’s confidential information, and whether that information could be used by the new firm in the current matter.
In other words, the question is not merely “is this lawyer now involved in the case,” but rather:
- whether the lawyer was previously, directly or indirectly, involved in the relevant matter;
- whether the lawyer previously received instructions from the former client;
- whether the lawyer previously communicated with the former client;
- whether the lawyer had access to confidential material relating to the former client; and
- whether, even if the material was not conveyed directly to the lawyer, the lawyer nonetheless had the opportunity to access that information.
If there is any uncertainty in the answers, the new firm must proceed with great care.
2. A Hypothetical Scenario
Suppose you act for Jane. You are considering engaging a new lawyer who was previously employed by another firm — a firm that acted for Jane’s former spouse, Mr Smith.
Before formally engaging that lawyer, you first need to consider the question of potential conflicts of interest.
You should ask the lawyer whether, during their time at the former firm, they:
- handled Mr Smith’s matter, directly or indirectly;
- received instructions from Mr Smith, or had any communications with him;
- were given any confidential information;
- even if they did not directly receive such information, nonetheless had the opportunity to access it; and
- are aware of any information about Mr Smith that could be used to Jane’s advantage.
At the same time, you need to consider whether, once the new lawyer joins, their level of involvement might affect your firm’s ability to continue acting for Jane. Where a risk exists, stricter safeguards may be required.
3. Protective Measures That Can Be Taken
Where appropriate, a firm should at a minimum consider the following categories of protective measure.
1 Establish a strict information barrier
The firm should establish a secure, clear, and enforceable information barrier — a so-called “Chinese Wall.” Such a barrier should include:
- prohibiting the lawyer from accessing the electronic and paper files for the relevant matter;
- prohibiting the lawyer from attending any meeting or discussion concerning the matter;
- restricting access permissions within the document management system;
- issuing written notice to all relevant staff making clear that the lawyer must not have access to the matter; and
- requiring the lawyer and relevant staff to acknowledge and comply with the barrier arrangement.
The firm should also consider whether to seek guidance from the Ethics Centre of the Queensland Law Society, or another professional body, to ensure the barrier is sufficient to satisfy the rules of professional conduct and the firm’s professional obligations.
2 Obtain an irrevocable written undertaking from the client or former employer
In certain circumstances, the new firm may require Jane to give an irrevocable written undertaking confirming that she will not ask the new lawyer to disclose or use any information about Mr Smith. Such an undertaking may provide that:
- Jane will not seek any information about Mr Smith from the new lawyer;
- Jane will not ask the new lawyer to reveal any confidential material they had access to while at the former firm; and
- Jane will not ask the new lawyer to use any information about Mr Smith to assist her case.
3 Obtain a written undertaking from the new lawyer
The new firm should also require the new lawyer to give a written undertaking confirming that they will not:
- seek out or provide any information about Mr Smith;
- mention Mr Smith in any case discussion;
- take part in any case work relating to Mr Smith;
- access any document, communication, or internal material in Jane’s matter; or
- influence the strategy in Jane’s case in any way, whether directly or indirectly.
4 Obtain undertakings from relevant staff
If, during the new lawyer’s time at the former firm, a secretary, assistant, or other support staff member had access to Jane’s or Mr Smith’s matter, the new firm should also consider requiring written undertakings from those staff. Such undertakings should provide that:
- they will not seek information about Mr Smith, Jane, or the relevant proceedings;
- they will not discuss Mr Smith, Jane, or the relevant proceedings with the new lawyer or anyone else;
- they will not access, retain, or use any document or communication relating to the matter; and
- they will not directly or indirectly assist any breach of the duty of confidentiality.
5 Limit the new lawyer’s involvement in the matter
Even where an information barrier has been established, the firm should still consider whether the new lawyer’s involvement in Jane’s matter needs to be limited. In many cases, the safer course is this:
the new lawyer takes no part in the matter at all, and no part in any internal discussion relating to it.
Doing so not only protects the former client’s confidential information, but also reduces the risk of the opposing party applying for a restraining order, or seeking to restrain the solicitor from acting.
4. An Information Barrier Alone May Not Be Enough
In some circumstances, a court may find that, even where a firm has established an information barrier, it remains insufficient to eliminate the conflict of interest, or the risk that confidential information will be misused.
The cases referred to in the original article include:
- Osferatu & Osferatu [2015] FamCAFC 177;
- Gavan & Mickell [2021] FedCFamC1F 280, in which the solicitors were successfully restrained from acting; and
- Hatzis & Hatzis [2022] FedCFamC1F 745, in which the court considered that the protective measures were sufficient to oppose the application.
These cases show that a court will assess, on the particular facts, whether the protective measures are sufficient. The key question is not simply whether the firm has erected a barrier, but whether that barrier is genuine, effective, and timely, and sufficient to protect the former client’s confidential information.
5. Practical Takeaways
For law firms: before engaging a lawyer who previously worked at the opposing party’s firm, the firm should proactively conduct a conflict-of-interest review. That review should not be a mere formality; it should include a written inquiry, an internal risk assessment, configuration of access permissions, written undertakings, and, where necessary, advice from a professional body.
For clients: if you discover that a lawyer newly engaged by the opposing firm previously worked at your own firm (or that of a related party) and may have had access to confidential information, you should raise this with your own lawyer promptly, so that the need for further measures can be assessed.
In highly adversarial family law litigation, confidential information often concerns financial arrangements, litigation strategy, evidentiary weaknesses, settlement positions, and sensitive personal information. Once such information is improperly used, it can have a substantial impact on a case.
For this reason, a conflict-of-interest issue can never be resolved simply by concluding that “we have already set up a Chinese Wall.” Every case calls for careful judgement based on its actual circumstances.
In Closing
A lawyer’s duty of confidentiality and duty to avoid conflicts of interest lie at the heart of legal professional ethics. For a firm, protecting clients’ confidential information is not only a professional responsibility but also an essential foundation for maintaining client trust and the integrity of the justice system.
In a profession where personnel move frequently, firms should establish clear, enforceable, and reviewable internal systems, so that any potential conflict of interest can be identified promptly and handled appropriately.
Note on source: This article is translated and adapted from “Conflict Issues,” an English article by Isaac Douglas of Counsel, and is provided for general information only.
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