Blurred lines: solicitor conflicts of interest
Snapshot
- Conflicts of interest aren’t just an ethical headache-they can unravel entire cases.
- Recent decisions like Maclean v Brylewski show that Courts will step in to restrain solicitors even when clients consent, prioritising fairness and public confidence over individual choice.
- This article discusses recent cases where the Court has exercised its inherent power to restrain a solicitor from acting where justice demands it, and the consequences for lawyers who blur the lines.
Solicitors must remain impartial and independent in litigation. To do otherwise arguably undermines the integrity of the judicial process and may also constitute a breach of fiduciary duty owed to a client.
The Full Court of the Federal Court, in Maclean v Brylewski, in the matter of Maclean [2025] FCAFC 133 (‘Maclean v Brylewski’), reaffirmed its inherent power to restrain a solicitor from acting where justice demands it, even if the client has given informed consent.
The Court’s paramount concern is to uphold public interest in the administration of justice, rather than protection of the interest of an individual party to litigation. This power can be exercised by the Court on its own motion.
In Maclean v Brylewski, Ms Maclean sought to annul her bankruptcy, which hinged on her ability to prove she was able to pay her debts. The solicitor representing Ms Maclean in her annulment application was also her largest creditor, claiming $391,000 in unpaid legal fees. There is nothing objectionable, prima facie, about a solicitor representing a client where fees are outstanding. However, in this case, the validity of the debt was in question and central to the assessment of Ms Maclean’s solvency.
The Court determined Ms Maclean was unlikely to receive a fair hearing where her solicitor had a personal claim to the debt and security in issue, making it impossible for him to represent Ms Maclean independently or challenge the very claims from which he stood to benefit.
The Full Court found the undisclosed conflict compromised the fairness of the hearing. The appeal was allowed and the annulment application was remitted for rehearing before a different judge.
The decision emphasises that:
- the Court may restrain a solicitor from acting, even if the client consents to the conflict;
- the power to restrain can be exercised on the Court’s own motion; and
- public confidence in the administration of justice requires hearings to be fair and seen to be fair.
This decision contrasts with Salmon v Albarran [2025] NSWCA 42 (‘Salmon v Albarran’) where a solicitor was found to have obtained fully informed consent from the client before continuing to act in a position of conflict.
Similar to Maclean v Brylewski, the solicitor stood to financially benefit from a particular course of action recommended to the client (payment of unpaid legal fees). However, given the solicitor in Salmon v Albarran had obtained fully informed consent, he was found to have overcome any issue as to conflict.
In Tekin v Stratford & Ors [2025] NSWSC 541, the consequences of failing to disclose a conflict were severe. The solicitors acted for Mr Tekin in defence of proceedings brought about by the solicitors’ own negligence, without informing Mr Tekin of the conflict or recommending that Mr Tekin obtain independent advice.
Although the defence was conducted free of charge, the Court found the conflict remained. The solicitors ultimately benefited from refinancing arrangements that paid off earlier fees from unrelated retainers and the Court ordered the solicitors to pay a sum equivalent to that benefit in equitable compensation to Mr Tekin.
Clear guidance emerges from these cases: conflicts of interest should be disclosed, carefully managed or avoided altogether. When they are not, there can be significant consequences for both the solicitor and client.
Legal practitioners should be mindful of the Court’s power to intervene to prevent a solicitor from acting where a fair-minded, reasonably informed member of the public would view their involvement as compromising the integrity or appearance of justice (see e.g., Porter v Dyer [2022] FCAFC 116 at [113]-[114]). Maintaining public confidence in the fairness of proceedings is paramount. The decision in Maclean v Brylewski is a reminder that the Court remains prepared to protect it when necessary.
This article originally appeared on lsj.com.au