The Importance of Knowing when not to act in a Matter

It is often said that when a lawyer chooses to represent him/herself then that lawyer has a fool for a client.  It can be equally foolish to choose to act for one’s ‘intimate partner’.

In Ogilvie & Farnam [2024] FedCFamC2F 793 the Court made Interlocutory Orders restraining the Husband from instructing a particular law firm to act for him in the proceedings before the Court, as his ‘intimate partner’, Ms P, was a partner of that firm.  The Wife sought the injunction to cover the entire firm and not just Ms P.  That legal practitioner had acted for the husband for some two years.  It was not disclosed at what point she became the Husband’s ‘intimate partner’ however, the evidence was that the Wife only became aware of the relationship seven weeks prior to filing her Application in a Proceeding.

The Wife did not assert that she and Ms P were otherwise acquainted or that Ms P would therefore have happened upon confidential information however, her case was that Ms P had a vested interest in the Husband’s case and that he had an ‘unfair advantage in having a person with whom he is personally associated acting for him or at least assisting him in a professional capacity in the conduct of the case’[40].  The Husband’s case, inter alia, was that he and Ms P did not live together, did not combine finances and had separate parenting commitments.

The primary concern for the Court here was:  ‘The test includes the protection of the appearance of the integrity of the administration of justice and that is what would need to be considered by the reasonably informed member of the public in the circumstances of this case. I am satisfied that that member would consider that the administration of justice is not presently being seen to be served by the present legal representation of the husband’[88].

Takeaway

Justice must not only be done, it must be seen to be done.  A legal representative’s duty to the Court is over and above a duty to that legal practitioner’s partner.