Conflict of interest

What is a conflict of interest?

A conflict of interest is where someone in a position of trust is serving or attempting to serve two or more interests and it would be difficult for that person to fulfil their duties impartially. A conflict of interest can exist even if no unethical or improper acts occur as a conflict of interest can be a potential or perceived conflict.

Conflict of interest can arise broadly where:

• a solicitor acts for both parties in a matter (ie a solicitor acts for: two or more people who have been co-jointly charged with criminal law offences and the co-accused have conflicting accounts)
• a solicitor acts against a former client having previously acted for that party in a related matter.
• a solicitors own interest is involved (ie a solicitor acts in transaction in which they have an interest in the transaction).

In these instances, a conflict of interest would arise as it is considered that the solicitor could not act in the best interests of their current or previous client as the solicitor may be able to obtain information which could promote one party's case to the detriment of the other.

There are some limited exceptions when a solicitor can represent any other party who has interests different to a current or previous client. These circumstances are when both parties:

• are aware that the solicitor is also acting for another client, and
• have given informed consent, and
• effective information barriers have been established.

In some cases, even if the above has been obtained a solicitor may still not be able to represent any other party due to the potential or perceived conflict of interest.

The conflict rules are established by the Australian Solicitors' Conduct Rules, Legal Aid Queensland solicitors and preferred suppliers are bound by these rules.

Solicitors have a professional responsibility to ensure that they do not represent a party where they may have a conflict of interest.

Under section 1.3 of Legal Aid Queensland's practice management standards preferred supplier's must ensure that there is no conflict of interest when requesting or accepting a grant of aid.

If a solicitor acts for a client where they have a conflict of interest the solicitor may be subject to disciplinary proceedings.

How Legal Aid Queensland determines if a conflict exists within the in-house legal practice

Information barriers

Under s 73 of the Legal Aid Queensland Act 1997, Legal Aid Queensland is taken to be one law firm providing legal services which means that the Brisbane office, together with all regional offices in Queensland are considered one legal firm.

Legal Aid Queensland's conflict of interest policy is in place to ensure that solicitors employed by Legal Aid Queensland do not represent any other party who has interests different to a current or previous client who is/has been represented by a solicitors employed by Legal Aid Queensland.

Legal Aid Queensland has effective information barriers in place to ensure that the flow of confidential information from one area of the organisation to another is prevented.

• assessing officers do not have access to the practice files of in-house practitioners
• in-house practitioners do not have access to any grants files
• solicitors employed by Legal Aid Queensland do not have access to the files for the other party to the action or to the file of a related party who are represented by a preferred supplier.

Although the size of regional offices precludes any prospect of establishing information barriers within offices, information barriers can be established between regional offices and Brisbane legal practice teams.

Processing applications

When applications for aid are received by Legal Aid Queensland, they are assessed by officers independent of the in-house legal practice.

Upon receipt of a new application the assessing officer will conduct a previous dealing search within Legal Aid Queensland's client database to identify if there are any active or previous files that relate to the applicant or any other parties.

Prior to referring any matter to the in-house legal practice, assessing officers will ensure that before allocating a grant of aid to an in-house solicitor there is no conflict of interest with an in-house solicitor acting on behalf of the applicant.

Criminal law matters

An assessing officer will determine there is the potential for an actual or perceived conflict of interest, and the matter will be referred to a preferred supplier when:

1. A client search reveals that the co-accused has been provided with a current grant of aid for representation by an in-house team or regional office.
2. A client search reveals that a complainant or witness to the crime has been provided with legal advice or there is a current or previous grant of aid for representation by any in-house team or regional office in a related matter.

An assessing officer will determine that no conflict of interest exists and the matter may be referred to the in-house legal practice when:

1. A client search reveals that the co-accused has not been provided with a current grant of aid for representation by any in-house team or regional office.
2. The other party search indicates that the complainant or witness has had advice only from any in-house team or regional office, then the file may be allocated to an in-house practitioner providing that the advice was provided by another Legal Aid Queensland team and the in-house practitioner has no access to the records of that advice.

Family and civil law matters and conferencing

An assessing officer will determine there is the potential for an actual conflict of interest, and the matter may be referred to a preferred supplier when:

1. A client search reveals that the other party has been provided with legal advice from that same office or team or there is a current grant of aid for representation by any in-house team or regional office for a related matter.
2. A client search reveals that the other party has previously received legal advice from that same office or team or representation by any in-house team or regional office in any family matter (current or finalised).
3. The application for aid relates to a family law matter and a client search reveals that the other party has been represented in a criminal or civil law matter by any in-house team or regional office, and the circumstances are such that some of the same issues may arise in the family law matter.
4. The application for aid relates to the appointment of an independent children's lawyer/separate representative and a solicitor employed by Legal Aid Queensland is/has acted on behalf of any of the parties to the proceedings in a family law matter or child protection matter, where the circumstances are such that some of the same issues may arise in the family law matter.
5. The application for aid relates to a family law matter or child protection matter in which a solicitor employed by Legal Aid Queensland is/has been appointed as an independent children's lawyer/separate representative.
6. A conference chairperson is to be appointed and a client search reveals that either party to a family law matter has a current or previous grant of aid for representation by the same in-house team or regional office, where the conference chairperson is based.

An assessing officer will determine that no conflict of interest exists and the matter may be referred to the in-house legal practice when:

1. The other party search indicated that the other party or a related party has had advice only from the First Advice Contact Team, then the file may be allocated to an in-house practitioner providing that the advice was provided by another LAQ team and the in-house practitioner has no access to the records of that advice.
2. The other party search indicates that either party has had advice only from any in-house team or office, then the file may be allocated to an in-house chairperson providing that the advice was provided by another LAQ team and the in-house chairperson has no access to the records of that advice.
3. The other party has previously been represented in any criminal or civil law matter, the file may be retained in-house by a different team or regional office, except in circumstances where some of the same issues are likely to arise in the family law case and therefore a reasonable perception of a conflict may arise.

Last updated 18 March 2022