A and B, Legal Practitioners v Disciplinary Tribunal

(2001) 10 Tas R 152; [2001] TASSC 55

Supreme Court of Tasmania

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Interrogate

Catchwords

1. Professions and Trades
2. › Lawyers
3. › Misconduct, unfitness and discipline
4. › Acting against former client
5. › Whether duty of loyalty to former client survives termination of retainer absent confidential information
6. › Whether failure to cease acting constitutes professional misconduct where no confidential information received
7. › Legal Profession Act 1993 (Tas), ss 56, 76(1), 78(a)
1. Professions and Trades
2. › Lawyers
3. › Solicitor and client
4. › Fiduciary relationship
5. › Termination of retainer
6. › Whether fiduciary duty owed to former client after termination
7. › Protection of confidential information as sole surviving duty
1. Appeal and New Trial
2. › Appeals stricto sensu and appeals by way of rehearing
3. › Nature of appeal from Legal Practitioners' Disciplinary Tribunal
4. › Appeal by way of rehearing
5. › Meaning of 'rehearing'
6. › Whether rehearing de novo or on materials before Tribunal
7. › Legal Profession Act 1993 (Tas), s 79(1)

Quick Take

In Tasmania, the sole basis for finding professional misconduct where a solicitor acts against a former client is the risk of disclosure of confidential information received during the former retainer. There is no broader 'duty of loyalty' to a former client that survives termination of the retainer independently of the duty to preserve confidentiality. The Fordham approach, which recognised a duty of loyalty and the appearance of disloyalty as independent grounds, does not represent the law following Bolkiah. An appeal from the Disciplinary Tribunal under s 79(1) of the Legal Profession Act 1993 (Tas) is an appeal by way of rehearing on the materials before the Tribunal, not a rehearing de novo.