Practice guidelines for managing conflict of interest ... · Guidelines for managing conflict of interest within the Legal Aid ... 9 3.2.1 Same matter conflict ... At the same time

Guidelines for managing conflict of interest within the Legal Aid

Commission of NSW

February 2007

Contents

Part 1 – The Context ........................................................................................ 1 Background...................................................................................................... 1 These Guidelines ............................................................................................. 1 The law.............................................................................................................. 2 (a) The general law........................................................................................ 2 (b) The Solicitors’ Rules ............................................................................... 2 (c) Consequences of breach ........................................................................ 3 Guiding principles for the Commission......................................................... 4 Part 2 – The Guidelines ................................................................................... 5 1 How to use these Guidelines .................................................................. 5 2 Conflict in the Commission .................................................................... 6

2.1 Imputed knowledge ...................................................................... 6 2.2 Same matter conflict..................................................................... 6 2.3 Related matter conflict.................................................................. 6 2.3.1 Legal advice service to former client ............................................ 6 2.3.2 Legal service other than legal advice service to former client ...... 7 2.3.3 Information service to former client............................................... 7 2.4 Loyalty conflict .............................................................................. 7

3 Guidelines ................................................................................................ 9

3.1 Information services ..................................................................... 9 3.2 Legal advice services ................................................................... 9 3.2.1 Same matter conflict..................................................................... 9 3.2.2 Related matter conflict.................................................................. 9 3.3 Minor assistance services ............................................................ 9 3.4 Duty lawyer services................................................................... 10 3.4.1 Same matter conflict................................................................... 10 3.4.2 Related matter conflict................................................................ 10 3.5 Litigation services ....................................................................... 11 3.5.1 Same matter conflict................................................................... 11 3.5.2 Related matter conflict................................................................ 11 3.5.3 Loyalty conflict ............................................................................ 11 3.6 Limited service............................................................................ 11

4 Family law Guide.................................................................................... 13

4.1 Information services ................................................................... 13 4.1.1 Procedures ................................................................................. 13 4.1.2 Examples.................................................................................... 13 4.2 Legal advice services ................................................................. 13 4.2.1 Procedures ................................................................................. 13

Conflict of Interest Guidelines – February 2007 1

4.2.2 Examples.................................................................................... 14 4.3 Minor assistance services .......................................................... 15 4.3.1 Procedures ................................................................................. 15 4.3.2 Examples.................................................................................... 16 4.4 Duty lawyer services................................................................... 16 4.4.1 Procedures for Duty Solicitor Scheme in family law practice...... 16 4.4.2 Procedure for Duty Solicitor Scheme in care and protection ...... 17 4.4.3 Examples.................................................................................... 18 4.5 Litigation services ....................................................................... 184.5.1 Procedures ................................................................................. 18 4.5.2 Examples.................................................................................... 19

5 Criminal law Guide................................................................................. 21

5.1 Information services ................................................................... 21 5.1.1 Procedures ................................................................................. 21 5.1.2 Examples.................................................................................... 21 5.2 Legal advice services ................................................................. 21 5.2.1 Procedures ................................................................................. 21 5.2.2 Examples.................................................................................... 21 5.3 Minor assistance services .......................................................... 22 5.3.1 Procedures ................................................................................. 22 5.3.2 Examples.................................................................................... 22 5.4 Duty lawyer services................................................................... 22 5.4.1 Procedures ................................................................................. 22 5.4.2 Examples.................................................................................... 23 5.5 Litigation services ....................................................................... 23 5.5.1 Procedures ................................................................................. 23 5.5.2 Examples.................................................................................... 24

6 Civil law Guide ....................................................................................... 25

6.1 Information services ................................................................... 25 6.1.1 Procedures ................................................................................. 25 6.1.2 Examples.................................................................................... 25 6.2 Legal advice services ................................................................. 25 6.2.1 Procedures ................................................................................. 25 6.2.2 Examples.................................................................................... 26 6.3 Minor assistance services .......................................................... 26 6.3.1 Procedures ................................................................................. 26 6.3.2 Examples.................................................................................... 26 6.4 Duty lawyer services................................................................... 27 6.4.1 Procedures ................................................................................. 27 6.4.2 Examples.................................................................................... 27 6.5 Litigation services ....................................................................... 28 6.5.1 Procedures ................................................................................. 28 6.5.2 Examples.................................................................................... 28

7 Definitions .............................................................................................. 30


8 Limited services..................................................................................... 33

8.1 Advice solicitors.......................................................................... 33 8.2 Duty solicitors ............................................................................. 33 8.2.1 Family law and civil law .............................................................. 33 8.2.2 Criminal law................................................................................ 34

9 Advice appointments............................................................................. 35

9.1 Introduction................................................................................. 35 9.1.1 Aim of these guidelines .............................................................. 35 9.1.2 Telephone advice ....................................................................... 35 9.1.3 Referrals..................................................................................... 36 9.2 Step one – Assess what kind of matter it is ................................ 36 9.2.1 Crime.......................................................................................... 36 9.2.2 Civil............................................................................................. 36 9.2.3 Family......................................................................................... 37 9.3 Step two - Refer to LawAccess where appropriate..................... 38 9.4 Step three - Make an appointment ............................................. 38 9.4.1 Circumstances when an appointment should be made in all

program areas ............................................................................ 38 9.4.2 Extra circumstances where an appointment should be made in

family law.................................................................................... 39 9.5 How to raise issues and address conflict with clients ................. 39


Part 1 – The Context

BackgroundThe aim of the Conflict of Interest Guidelines is to provide staff with a consistent and workable strategy to identify and manage conflict of interest situations. Recognising and responding appropriately to conflict of interest is a regular part of legal practice. There is considerable material available to assist practitioners in identifying and avoiding situations of conflict, including some excellent articles published by the Law Society. However, the available case law and commentaries can be difficult to apply to the special characteristics of the Commission. In particular, there is little that is relevant to an organisation which has a large number of limited service clients, as is the case with the Commission which provides extensive information, advice and duty services. The Commission is concerned that staff are able to quickly and correctly identify conflict situations. This will ensure that we are able to maximise the flexibility and efficiency of service delivery by minimising the number of matters referred to alternative service providers. At the same time it will improve the quality of service offered to clients by minimising the number of unnecessary referrals and matters which must be reassigned part way through. The Commission intends to address any conflict of interest issues across in-house program activities by introducing electronic firewalls in our client database. This will be a precursor to the adoption of an Information Barriers approach subject to the approval of the Law Society. Until this occurs, you should refer to these Guidelines to address any conflicts of interest or perceptions of conflicts of interest both within each program and between programs.

These GuidelinesThe Commission has developed these Guidelines in order to: • provide guidance to staff on identifying conflict • set out guidelines which will ensure that clients are only referred to other

service providers in cases of genuine conflict • establish procedures to ensure that staff carry out appropriate conflict

checks • provide guidance to staff on assisting clients where a conflict is identified.

Conflict of Interest Guidelines – 31 May 2006 1

The law

(a) The general law

The relationship between solicitor and client is a fiduciary relationship, that is, a special relationship of trust and confidence. This fiduciary relationship encompasses a number of duties which are binding on all solicitors. When we talk about conflict of interest we are talking about a breach of fiduciary duty or a conflict between two or more of these duties. The fiduciary duties relevant to conflict of interest are: • The duty of confidentiality • The duty to disclose to the client or put at the client’s disposal all

information within the solicitor’s knowledge that is relevant in order to act in the client’s best interests

• The duty of loyalty to the client • The duty not to put the solicitor’s or anyone else’s interests before those of

the client The implications of a conflict between these duties have been the subject of considerable case law. While there are still areas of uncertainty, the case law is generally able to provide guidance to practitioners in determining whether a conflict of fiduciary duties exists. The Commission has drawn on the principles established by the case law in developing these Guidelines.

(b) The Solicitors’ Rules

Many, although not all, of the fiduciary duties and the concepts arising from the case law have been incorporated into the Revised Professional Conduct and Practice Rules 1995 (The Solicitors’ Rules). The Solicitors’ Rules are binding on all New South Wales solicitors. Rules 2 and 3 reflect the duty of confidentiality as a ground for restraining a solicitor from acting against a former client.

Rule 2 – Confidentiality 2.1 A practitioner must not, during, or after the termination of, a retainer, disclose to

any person, who is not a partner or employee of the practitioner’s firm, any information, which is confidential to a client of the practitioner, and acquired by the practitioner during the currency of the retainer, unless: 2.1.1 the client authorises disclosure; 2.1.2 the practitioner is permitted or compelled by law to disclose; or 2.1.3 the practitioner discloses information in circumstances in which the law

would probably compel its disclosure, despite a client’s claim of legal


professional privilege, and for the sole purpose of avoiding the probable commission or concealment of a felony.

2.2 A practitioner’s obligation to maintain the confidentiality of a client’s affairs is not limited to information which might be protected by legal professional privilege, and is a duty inherent in the fiduciary relationship between the practitioner and client.

Rule 3 – Acting against a former client Consistently with the duty which a practitioner has to preserve the confidentiality of a client’s affairs, a practitioner must not accept a retainer to act for another person in any action or proceedings against, or in opposition to, the interest of a person: (a) for whom the practitioner or the firm, of which the practitioner was a partner, has

acted previously; and (b) from whom the practitioner or the practitioner’s firm has thereby acquired

information confidential to that person and material to the action or proceedings; and

that person might reasonably conclude that there is a real possibility the information will be used to the person’s detriment.

Rule 9 of the Solicitors’ Rules reflects the dangers recognised in the general law of acting for more than one party in the same matter:

Rule 9 – Acting for more than one party 9.1 For the purposes of 9.2 and 9.3:

• proceedings or transaction mean any action or claim at law or in equity, or any dealing between parties, which may affect, create, or be related to, any legal or equitable right or entitlement or interest in property of any kind.

• party includes each one of the persons or corporations who, or which, is jointly a party to any proceedings or transaction.

• practitioner includes a practitioner’s partner or employee and a practitioner’s firm.

9.2 A practitioner who intends to accept instructions from more than one party to any proceedings or transaction must be satisfied, before accepting a retainer to act, that each of the parties is aware that the practitioner is intending to act for the others and consents to the practitioner so acting in the knowledge that the practitioner: (a) may be, thereby, prevented from:

(i) disclosing to each party all information, relevant to the proceedings or transaction, within the practitioner’s knowledge, or,

(ii) giving advice to one party which is contrary to the interests of another; and

(b) will cease to act for all parties if the practitioner would, otherwise, be obliged to act in a manner contrary to the interests of one or more of them.

9.3 If a practitioner, who is acting for more than one party to any proceedings or transaction, determines that the practitioner cannot continue to act for all of the parties without acting in a manner contrary to the interests of one or more of them, the practitioner must thereupon cease to act for all parties.

(c) Consequences of breach

The courts may intervene to restrain a solicitor from acting in a matter if to continue acting would breach the solicitor’s fiduciary duty to a current or former client. Although the court may act on its own motion, it will usually be responding to an application by another party to the proceedings. If the court


makes a ruling that a conflict exists, the matter may be delayed and additional costs will be incurred in instructing a new solicitor. A breach of the Solicitors’ Rules is capable of being professional misconduct or unsatisfactory professional conduct. Breach of lawyer-client duties may be enforced by the client against the solicitor by way of civil remedies. In criminal matters a breach of lawyer-client duties may provide grounds for a convicted client to appeal the conviction on the grounds that a miscarriage of justice has occurred.

Guiding principles for the Commission The Commission has developed the following principles which underpin the policies and procedures for dealing with conflict of interest set out in these Guidelines: • The Commission will adopt a robust and practical approach to managing

conflict of interest situations to ensure that legal services are available to the maximum number of clients without compromising the quality of service provided to individual clients.

• The Commission will only refer matters to other service providers if

satisfied that a real conflict exists, not because of a mere perception of conflict.

• Each matter will be considered on its own facts and the determination of

the conflict issue will be based on those facts and not on presumptions about the existence of conflicts between certain categories of matters.

• Even when a conflict exists, the Commission will assist each client to the

extent possible with the provision of information and an appropriate referral.


Part 2 – The Guidelines

1 How to use these Guidelines Chapter 2 of these Guidelines describes the three types of conflict of interest that arise in the Commission: • same matter conflict (section 2.2) • related matter conflict (section 2.3) • loyalty conflict (section 2.4) These types of conflict arise in all the Commission’s practice areas. Chapter 3 applies each of these types of conflict to the different types of service provided by the Commission: • information services • legal advice services • minor assistance services • duty lawyer services • litigation services Solicitors should be familiar with the different types of conflict and how they apply to each type of service. Chapters 4 to 6 provide information about how the different types of conflict affect each practice area: • Family law – Chapter 4 • Criminal law – Chapter 5 • Civil law – Chapter 6. Each chapter is divided into sections dealing with the different types of service provided by the Commission. Chapter 7 gives definitions of the key terms used in these Guidelines. Terms defined in Chapter 7 are written in bold throughout the Guidelines. Chapter 8 gives guidance in assisting clients where a conflict of interest prevents the solicitor providing a full service. Chapter 9 gives an outline to Legal Support Officers of the processes to be followed when interacting with clients who wish to seek advice or information. Scripts for use by such staff are also included to ensure consistent and appropriate language is employed.


2 Conflict in the Commission

2.1 Imputed knowledge

Commission staff are deemed to have personal knowledge of any information recorded on LA Office. Commission staff are not deemed to have personal knowledge of information contained in hard copy files. However, there is a rebuttable presumption that all Commission staff will have access to this information. Knowledge held by Commission staff is not imputed to other staff members. However, there is a rebuttable presumption that information will move between practitioners.

2.2 Same matter conflict

A conflict of interest exists if a Commission solicitor provides a legal service to a client, and that solicitor or another Commission solicitor has provided a legal service to another party with an adverse interest in the same matter. The Commission cannot act for two parties with opposing interests in the same matter, even if there is no risk of any breach of confidentiality. A conflict of interest does not exist if a Commission solicitor provides a legal service to a client and that solicitor or another Commission solicitor has previously provided an information service or general minor assistance only to another party with an adverse interest in the same matter.

2.3 Related matter conflict

2.3.1 Legal advice service to former client

A conflict of interest exists if a Commission solicitor provides a legal service to a client and that solicitor or another Commission solicitor has previously provided a legal advice service to another client in a related matter and • relevant confidential information is recorded on LA Office, or • the solicitor was the solicitor who provided the legal advice service to the

other client, or • the solicitor has personal knowledge of any relevant confidential

information.


Legal advice services differ from other legal services provided by the Commission as usually all information is recorded on LA Office, and no paper files are retained.

2.3.2 Legal service other than legal advice service to former client

A conflict of interest exists if (a) a Commission solicitor provides a legal service to a client, and (b) that solicitor or another Commission solicitor has previously provided a

legal service (other than a legal advice service) to another client in a related matter, and

(c) there is a real possibility that the other client has disclosed relevant

confidential information, and (d) there is a real possibility of that information being disclosed or used to

the detriment of the former client. In all cases where • the same solicitor provides the legal services to the former client and the

current client, or • relevant confidential information is recorded on LA Office, or • the solicitor providing a legal service to the current client has personal

knowledge of any relevant confidential information there will be a real possibility that any relevant confidential information will be disclosed or used to the detriment of the former client.

2.3.3 Information service to former client

A conflict of interest does not exist if a Commission solicitor provides a legal service to a client and that solicitor or another Commission solicitor has previously provided an information service only to another client in a related matter.

2.4 Loyalty conflict

A conflict of interest exists if a Commission solicitor provides a litigation service to a client and the same or another Commission solicitor • is currently providing a litigation service to another client, or


• has previously provided a litigation service to another client which concluded within the previous 12 months

in a related matter or an unrelated matter, and the other client has an adverse interest to the client in the present proceedings. This conflict arises from the Commission’s duty of loyalty to its clients, and does not depend of the existence of any relevant confidential information. The duty of loyalty does not arise when a legal service other than a litigation service is provided to either client.


3 Guidelines

3.1 Information services

No conflict of interest arises from the fact that a Commission solicitor has provided a service of any type to another client, whether in the same matter, a related matter or an unrelated matter.

3.2 Legal advice services

3.2.1 Same matter conflict

A Commission solicitor may not provide a legal advice service where a same matter conflict would be created (see section 2.2).

3.2.2 Related matter conflict

A Commission solicitor may not provide a legal advice service where a related matter conflict would be created (see section 2.3). A related matter conflict would not be created if • no relevant confidential information is recorded on LA Office, and • the solicitor did not provide the legal service to the former client, and • the solicitor has no personal knowledge of any relevant confidential

information. If the solicitor provided the legal service to the former client, or otherwise has personal knowledge of any relevant confidential information, there is a real possibility that the information will be disclosed or used to the detriment of the former client, and a conflict of interest would be created. A conflict would not be created if the legal advice service is provided by another Commission solicitor without personal knowledge of any relevant confidential information, as there is no real risk of this solicitor becoming aware of any relevant confidential information held by other Commission solicitors or contained in hard copy files during the period of the legal advice service.

3.3 Minor assistance services

The fact that a Commission solicitor has provided


• a service of any type to another client in a related matter or an unrelated matter, or

• an information service in the same matter would not create a conflict of interest which would prevent a Commission solicitor providing general minor assistance. The Guidelines for legal advice services in section 3.2 apply to the provision of specific minor assistance.

3.4 Duty lawyer services


A Commission solicitor may not provide a duty lawyer service where a same matter conflict would be created (see section 2.2).


A Commission solicitor may not provide a duty lawyer service where a related matter conflict would be created (see section 2.3). A related matter conflict would not be created if • no relevant confidential information is recorded on LA Office, and • the solicitor did not provide the legal service to the former client, and • the solicitor has no personal knowledge of any relevant confidential

information. If the solicitor provided the legal service to the former client, or otherwise has personal knowledge of any relevant confidential information, there is a real possibility that the information will be disclosed or used to the detriment of the former client, and a conflict of interest would be created. If no relevant confidential information is recorded on LA Office, a conflict would not be created if the duty lawyer service is provided by a Commission solicitor without personal knowledge of any relevant confidential information, as there is no real risk of this solicitor becoming aware of any relevant confidential information held by other Commission solicitors or contained in hard copy files during the period of the duty lawyer service. If no conflict check can be conducted prior to the duty lawyer service being provided a related matter conflict does not arise unless the solicitor providing the duty lawyer service has personal knowledge of any relevant confidential information.


3.5 Litigation services


A Commission solicitor may not provide a litigation service where a same matter conflict would be created (see section 2.2).


A Commission solicitor may not provide a litigation service where a related matter conflict would be created (see section 2.3). In litigation service matters there is always a real possibility that any relevant confidential information disclosed by a former client to a Commission solicitor will be disclosed or used to the detriment of the former client. A related matter conflict will not be created if • the legal service provided to the former client was a legal advice service

only, and • no relevant confidential information is recorded on LA Office, and • the solicitor did not provide the legal advice service to the former client,

and • the solicitor has no personal knowledge of any relevant confidential

information.

3.5.3 Loyalty conflict

A Commission solicitor may not provide a litigation service where a loyalty conflict would be created (see section 2.4).

3.6 Limited service

Sometimes as a result of a conflict of interest a Commission solicitor can only provide a limited service, which may be a different service to that sought by the client. Examples: • A client seeking a legal advice service may be given an information

service only.


• A client seeking a legal advice service and a minor assistance service

may be provided with general minor assistance only. • A client approaching a duty solicitor for a duty lawyer service may be

provided with a limited form of duty lawyer service, such as an adjournment application.

The Commission solicitor must ensure that the client is aware that a limited service is being provided. Sometimes the only service that can be provided is a referral to another service provider. Chapters 8 and 9 set out the procedure to be followed to ensure that clients are as fully informed as possible when they have to be referred to another service provider, or given a limited service by the Commission.


4 Family law Guide


4.1.1 Procedures

You do not need to do a conflict check before providing information only. Even if a conflict check indicates that the Commission is acting for another party to the proceedings, the person can be assisted by information and referral.

4.1.2 Examples

Example 1

Mohammad approaches the Commission for information about divorce classes. A Commission solicitor has previously advised Mohammad’s estranged wife about parenting orders. There is no conflict of interest, and the Commission can provide Mohammad with information about divorce classes, and other general information about divorce.


4.2.1 Procedures

Family law advice services are conducted in non appointment clinics in the larger offices and by appointment in the smaller offices. Clients can be provided with a number of forms of assistance in the advice service although ideally, where possible, requests for simple advice or information should be referred to LawAccess. Conflict checks of client records will be conducted prior to the provision of advice services. Appointment based services

If a conflict check indicates that an in-house solicitor is currently acting for the other party to the dispute or a child of the parties, the client will be referred ideally to a list of local practitioners willing to do legal aid work, with a facilitated referral in an urgent situation. If the check indicates provision of services to the other party, but not current case representation for the other party, an appointment should be made for the advice service. If the client indicates urgency the appointment should be made within 48 hours. The solicitor conducting the advice service will then


see the client and determine the appropriate level of assistance for the client. In determining this the solicitor should take the following matters into account: (i) If the previous service was not likely to have resulted in records being

held of a disclosure of confidential information which would be adverse to the interests of the client presenting for advice, comprehensive advice can be given about the matter. This is likely to be the case where the previous service was remote in terms of time/matter/issue/parties.

(ii) If there is a risk that the previous service may have involved the

disclosure of confidential information, general information about the law and procedures can be given, and appropriate referrals, but not detailed advice about the specific dispute.

Clinic services

Following the conflict check all clients will be seen by the solicitor on the advice service. The solicitor will then provide information or advice according to paragraphs (i) and (ii) above. Recording of service provided

Details of advice given should be brief. If an application for legal aid is not a next step, the essence of the advice only should be recorded in one or two sentences. The most significant parts of the advice to record are those which would be relevant in a complaint, for example advice about time limits or removal of a child, any referral arranged and the way urgency was dealt with. If information or referral only was provided, the solicitor should make a note of this on LA Office.

4.2.2 Examples

Example 1

Susan approaches the Commission for advice about her family law proceedings. A Commission solicitor is acting as the independent children’s lawyer in these proceedings. There would be a same matter conflict if a Commission solicitor gave Susan legal advice. Susan can be given general information but must be referred to another service provider for legal advice. Example 2

Dave approaches the Commission for advice about parenting orders. A check of LA Office shows that a solicitor from the Commission’s Mental Health Advocacy Service represented the mother on a duty basis, prior to separation. No details of the service are recorded on LA Office. The family law advice solicitor has no personal knowledge of the service provided to the mother. There is no related matter conflict, as there is no risk of any confidential information from the mother being disclosed during the course of advising


Dave. If, during the course of the legal advice service, it becomes apparent that Dave is unaware of the mental health issue, and this is relevant to the legal advice service being provided, the solicitor should terminate the interview and refer Dave to another service provider. Example 3

Maria approaches the Commission for advice about parenting orders. A check of LA Office shows that a Commission solicitor has recently acted for the father in criminal matters including serious driving offences and drug offences. No details of the service provided are recorded on LA Office. This raises the issue of a related matter conflict. These criminal charges are relevant to the family law proceedings. The fact that Maria may not be aware of the charges means that this is relevant confidential information. Maria can be given information only or referred to another service provider.


4.3.1 Procedures

Conflict checks of client records will be conducted prior to the provision of minor assistance services. Clients can be provided with different levels of minor assistance services: (i) Minor assistance services which are similar to the provision of

information (general minor assistance). These services might include printing out and providing forms to clients or making telephone calls to arrange appropriate referrals particularly in an urgent situation. Some types of minor assistance of this nature, particularly arranging an appropriate referral in an urgent situation, could be given where comprehensive advice could not be provided because of conflict.

(ii) Minor assistance which is specifically related to the dispute, for

example drafting orders or simple affidavits (specific minor assistance). The guidelines to be followed are the same as those for advice services. If following a conflict check there is an apparent risk that the previous service may have resulted in records being held of a disclosure of confidential information which would be adverse to the interests of the client presenting for minor assistance, only minor assistance of the type set out in paragraph (i) above can be given. If any previous service was not likely to have resulted in records being held of a disclosure of confidential information which would be adverse to the interests of the client presenting for assistance, the more comprehensive form of minor assistance may be given.


Recording of service provided: if minor assistance was for information/referral only, this should be noted. Details of minor assistance given should be brief. Refer to recording guidelines for recording legal advice services set out in paragraph 4.2.1 above. A copy of any document created for the provision of minor assistance should be kept by the solicitor providing the assistance.

4.3.2 Examples

Example 1

Alfred comes into the family law advice clinic for assistance in responding to a letter from the Child Support Agency. A check on LA Office shows that a Commission solicitor is currently acting for the mother of the child in child support proceedings. There would be a same matter conflict if the advice solicitor assisted Alfred by drafting a response to the Child Support Agency (specific minor assistance). He can be given information or general minor assistance only. Example 2

Li-Ling attends the family law legal advice service seeking urgent advice. The father of her child has not returned him following a contact visit and she needs to apply for a recovery order. A check on LA Office show that a Commission solicitor is currently acting for the father in unrelated criminal matters. The advice solicitor can give Li-Ling advice. However, the Commission cannot act for Li-Ling in-house, as this would involve a loyalty conflict. Li-Ling needs to be urgently referred to another solicitor. The advice solicitor can contact a private practitioner, explain Li-Ling’s situation and make an appointment for her (general minor assistance).


4.4.1 Procedures for Duty Solicitor Scheme in family law practice

The duty solicitor will endeavour to undertake a conflict check at the time a client first approaches the duty solicitor for assistance. The national protocols provide that family law duty services encompass a wide range of services which can be provided at court. Assistance may include: (i) advice and information, including the completion of simple

documentation, limited to the discrete court event (ii) representation for adjournments and short or procedural mentions


(iii) representation for limited negotiations with a view to drafting consent

orders (iv) the protocols also provide that, subject to the discretion and availability

of the duty lawyer, assistance may extend to include:

• representation for recovery orders, or • urgent injunctions regarding children

If a conflict check indicates that an in-house solicitor is currently acting for the other party or a child of the parties in a family law matter, or in a non family law matter which may involve issues relevant to the family duty matter, the duty solicitor will not be able to assist the client other than to provide information and referral. If a conflict check indicates that the particular duty solicitor has previously provided a duty service or minor assistance to the other party in the dispute, the duty solicitor will refer the duty client to another duty solicitor, or other solicitor at the court prepared to assist on a pro bono basis. In all other cases a service will be provided by the duty solicitor in accordance with the protocol, unless, in the discretion of the duty solicitor, in relation to the service type referred to in paragraph (iv) above, it is considered that a previous service provided to the other party or child is likely to have resulted in records being held of a disclosure of information which would be adverse to the interest of the client presenting for the duty service. Hard copy duty records are to be made in all matters and retained. They will be accessible to the individual practitioner and the relevant supervisor for management purposes. The provision of duty service will not preclude a Commission solicitor from acting for another party or acting as an independent children’s lawyer in a later matter, even if the duty client has an adverse interest to the client in the subsequent case matter.

4.4.2 Procedure for Duty Solicitor Scheme in care and protection

Where it is possible a conflict check is to be carried out by in-house practitioners prior to providing a duty service (such as where access is available to a computer at court that is linked to the Commission’s database). Where in-house practitioners are aware, as a result of a conflict check or otherwise, of a conflict they will not provide the duty service. Such a conflict exists if a Commission practitioner has provided or is currently providing a service to another party in the same or related proceedings.


Hard copy duty records are to be made in all matters and retained. They will be accessible to the practitioner and relevant supervisor in limited circumstances where, for instance, the Commission practitioner in the matter has resigned or is absent on leave, and otherwise for managerial purposes. The provision of a duty service will not preclude the Commission from acting for another party (including a child) with an adverse interest in a subsequent case matter, provided that the duty matter has not become a case work matter. A practitioner must cease providing a duty service if a conflict of interest becomes evident during the course of the duty service (see section 8.2).

4.4.3 Examples

Example 1

A client approaches the family law duty solicitor at the Federal Magistrates Court for assistance in drafting simple consent orders. A check on LA Office shows that another Commission solicitor is the independent children’s lawyer in the current proceedings. The duty solicitor cannot draft the orders or appear for the client as this would create a same matter conflict. Where another Commission solicitor is currently acting for an opposing party or the child of the parties assistance provided by the duty solicitor should be limited to the provision of information or a referral to another service provider. Example 2

The mother approaches the family law duty solicitor at the Federal Magistrates Court, seeking representation for an adjournment application. A check of LA Office shows that the Commission represented the father in criminal law proceedings which concluded many years previously. The information recorded on LA Office is not relevant to the current application, so there is no issue about a related matter conflict. Example 3

The mother approaches a family law duty solicitor seeking representation to apply for an adjournment of property proceedings. The solicitor had previously acted as the independent children’s lawyer in the proceedings. The solicitor cannot appear for the mother. She can refer her to another duty solicitor. There is no conflict of interest issue preventing another duty solicitor appearing for the mother.


4.5.1 Procedures

Conflict checks are to be carried out by individual practice group staff within the practice group and across the other practice groups.


A Commission practitioner is precluded from acting for a client if the practitioner or another Commission practitioner • is representing; or • has represented a party in the same or related proceedings with an interest adverse to the client, whether the parties are on the same or opposite sides of the record. In a family law matter where a Commission solicitor has previously acted for one of the parties, another in-house solicitor cannot act for the other party to the dispute if further proceedings are instituted.

4.5.2 Examples

Example 1

A Commission solicitor acted for the mother, Jessamine, in parenting proceedings which concluded five years ago. The father, Todd, has now approached the Commission seeking representation in an application for variation of contact. This would create a same matter conflict and the Commission cannot act for Todd. Example 2

Teresa asks for a Commission solicitor to act for her in an application for a recovery order. A check on LA Office shows that the Commission acted for the father, Tony, six years ago in a criminal matter. LA Office records show that the offences included drug offences and stealing. The solicitor requests Tony’s file. There is nothing on the file to show that Tony disclosed any confidential information that is relevant to the current proceedings. No related matter conflict would be created by acting for Teresa. Example 3

Aaresh wants a Commission solicitor to act for him in an application for residence. A check on LA Office shows that the Commission acted for Bruce, the mother’s new boyfriend in a number of criminal matters over the past few years, including assault charges. The fact that Bruce has been charged with these offences is relevant to Aaresh’s proposed application. A related matter conflict would be created if the Commission acted for Aaresh, and the Commission solicitor is unable to act. There is no need to review the hard copy file, as relevant confidential information is recorded on LA Office. Example 4

Tamasin asks the Commission to act for her in parenting proceedings. The Commission acted for her former partner, Sam, in a civil matter which concluded six months ago. Tamasin attended all conferences with Sam and was fully aware of the proceedings. Therefore, no related matter conflict


would be created if a Commission solicitor acted for Tamasin. However a duty of loyalty prevents the Commission from acting against Sam within 12 months of his matter concluding.


5 Criminal law Guide


5.1.1 Procedures

When a person seeks an “information only” service from a Commission employee, no conflict of interest arises from the fact that a Commission solicitor has provided a service of any type to another client, in the same matter, a related matter or an unrelated matter.

5.1.2 Examples

Example 1

Fatima has been refused legal aid for a negligent driving matter after being involved in a car accident. She has pleaded guilty, and the matter has been adjourned for sentencing. Fatima has been advised by the magistrate to bring character references to the next court appearance. One of the Commission’s civil solicitors has previously provided legal advice to the other driver in relation to motor vehicle property damage. There is no conflict of interest issue which would prevent a Commission solicitor providing Fatima with written and verbal information about character references.


5.2.1 Procedures

You will be conflicted out if you or another Commission solicitor has already provided advice to the other party in the same proceedings. You may be conflicted out if you or another Commission solicitor has provided advice to another party in other proceedings. If it is a related matter and confidential information is recorded on LA Office, it would be safer to refer the person on to another agency for advice. However, if advice is given in an unrelated matter, although confidential information is recorded on LAOffice, this may not result in a conflict.

5.2.2 Examples

Example 1

Becky asks for advice about defending an assault charge. A check on LA Office shows that a Commission solicitor has advised and is currently acting for Matthew, the alleged victim of the assault, in respect of a victim’s


compensation application. Details of the alleged assault are recorded on LA Office. However, none of this information is confidential as Becky is already aware of Matthew’s allegations from the police brief. No related matter conflict would be created if Becky was given a legal advice service. As a Commission solicitor is currently acting for the victim, only brief details should be recorded on LA Office, and care should be taken that no confidential information relevant to the representation of Matthew is recorded.


5.3.1 Procedures

The same guidelines as referred to in relation to the provision of an advice service (section 5.2) apply to the provision of a minor assistance service.

5.3.2 Examples

Example 1

Tony asks for assistance in representing himself defending charges of animal cruelty brought by the RSPCA. Tony is not eligible for legal aid. However, his co-accused Eric who has an intellectual disability has been granted aid. There is no conflict apparent between the interests of Tony and Eric. Tony can be given minor assistance, such as assistance with drafting submissions to put to the court or arranging an appointment with another service provider.


5.4.1 Procedures

The Commission cannot act for two parties with opposing interests in the same matter. However, on a duty basis this rule may be relaxed where there is no risk of any breach of confidentiality, and where there is no alternative representation available for the co-accused. It may be the case that you will be able to retain one or more co-accused at the preliminary stages of a matter as long as matters are not being put to the Court on the facts of the case, which are contrary to the interests of another co-accused. It will often result in cost savings and efficiencies for the Commission to retain co-accused in committal proceedings at least until a brief is served and more detailed instructions are obtained. It is often the case that a duty solicitor is simply not aware that another Commission solicitor may have acted for another client with a contrary interest (for example, the victim in the current proceedings). This is not a conflict. While Commission staff are deemed to have personal knowledge of any information recorded on LA Office, the reality is that we simply cannot do an


LA Office search before appearing for each potential client either in custody or on bail on a list day. As long as you have no personal knowledge of having acted for someone with a contrary interest in the current proceedings, you may continue to act.

5.4.2 Examples

Example 1

Thea approaches the duty solicitor for representation on her first appearance. She wishes to apply for bail. The duty solicitor will also be making a bail application for Leanne, Thea’s co-accused. There is no conflict between the instructions given by Thea and Leanne at this stage, so no same matter conflict would be created by appearing for both. Example 2

The duty solicitor appears for a client on an assault charge. The matter is adjourned. On returning to the office the solicitor finds that the Commission has previously acted as the independent children’s lawyer for the victim in a Family Court matter. The matter must be assigned to a private solicitor because of the risk that a related matter conflict will prevent the family law solicitor from acting for the children in the future.


5.5.1 Procedures As referred to in the guidelines relating to legal advice (section 5.2), minor assistance (section 5.3) and duty (section 5.4), a Commission solicitor cannot act for two parties with opposing interests in the same matter, even if there is no risk of any breach of confidentiality. Where a Commission solicitor has provided advice and/or acted for another party in other proceedings where confidential information has been obtained and there is a real possibility of that information being used to the detriment of the former client, there is a conflict and the matter should be assigned out. A conflict of interest does not arise if a Commission solicitor provides a legal service to a client and that solicitor or another Commission solicitor has previously provided an information service only to a party with an adverse interest in the same matter. In addition to the examples set out in this document, the Criminal Law Division has dealt with the issue of potential conflict justifying the assignment of a matter in its Criminal Law Procedures Manual. You should refer to pages 19-30 of the Manual for examples of potential conflict situations which justify the assignment of a matter.


5.5.2 Examples

Example 1

John and Brian are co-accused. Neither has decided how to plead. As there is no conflict apparent from their initial instructions a Commission solicitor can act for both John and Brian. When the prosecution brief is received the solicitor should again consider whether there is any conflict between John’s and Brian’s interests. If there is a real risk of a conflict emerging, one of the matters should be assigned to a private practitioner. Example 2

Frank applies for legal aid to defend serious criminal charges. A check on LA Office shows that a Commission solicitor has acted as the independent children’s lawyer in family law proceedings between Frank and his former wife. The family law proceedings concluded two years ago. However, the children are still young. There is no confidential information in the family law file which would create a related matter conflict preventing a Commission solicitor acting in the criminal matter. However, if a Commission solicitor acts for Frank, this will create a conflict which will prevent a Commission solicitor acting for the children in the future. Often child representation matters become active again, and it is in the best interests of the child to be represented by the same solicitor, if possible. For this reason Frank’s matter should be assigned to a private solicitor, unless the children’s lawyer advises that the matter is unlikely to be reopened in the future. Example 3

Ken applies for legal aid to defend assault charges. A check on LA Office shows that a Commission solicitor from the Commission’s Mental Health Advocacy Service represented the victim, Stacey, on a duty basis. No details of the duty lawyer service are recorded on LA Office. The solicitor requests Stacey’s hard copy file, which contains details of her mental health issues. A related matter conflict would be created if a Commission solicitor acted for Ken. Example 4

Tom and Mark are co-accused who have both applied for legal aid. They are both pleading not guilty. A check on LA Office shows that the Commission has previously acted for Mark in protracted civil litigation. There is no real possibility of any relevant confidential information being contained in Mark’s civil file. However, the matter concluded less than 12 months ago, and a duty of loyalty prevents the Commission acting against Mark. Mark’s matter should be retained in-house and Tom’s assigned to a private solicitor.


6 Civil law Guide


6.1.1 Procedures

Information services involve providing information to a client which may assist them in resolving a legal problem in a general way rather than in relation to a particular dispute. Information can include making a referral. It is not necessary to record the name, address and other identifying material from the client on LA Office. You are required to record that an information service was provided. Information can be provided to all clients even if a Commission solicitor has previously provided a service of some kind in the same or a related matter to some other person. It is not necessary to do a conflict check before providing information services only.

6.1.2 Examples

Example 1

Kerry attends the Legal Aid office for assistance with recovering a debt in the Local Court. The Commission has previously advised the alleged debtor in relation to the matter. This does not prevent a Commission solicitor providing a copy of the Commission’s brochures and pamphlets on Local Court debt recovery, or providing general information about court procedures.


6.2.1 Procedures

Advice involves obtaining information about the client’s problem and advising the client about their legal options in relation to the specific problem or dispute. You are required to record on LA Office, the name, address and other identifying details of the client and the nature of the advice in brief. If you or another Commission solicitor have provided advice, minor assistance or representation to the other party in the same matter, a conflict of interest arises and you cannot advise the client or reveal any information about the other party contained in the Commission records.


If you or another Commission solicitor have provided advice, minor assistance or representation to the other party in another matter, a conflict may arise. If you have obtained confidential information relevant to the current issue in dispute, or if that information is recorded on LA Office, this may lead to a conflict. However, if you have no personal knowledge of the other matter and there is no relevant confidential information recorded on LA Office or the other matter in which assistance was provided is unrelated to the present matter, there is no conflict. A conflict check should be conducted before any Commission officer gives advice or minor assistance. If the check indicates a conflict, the client should only be given information or a referral to another agency.

6.2.2 Examples

Example 1

Mary approaches Legal Aid for advice. She lives in a Department of Housing unit and is being harassed by one of her neighbours. A check on LA Office shows that the Commission has acted for the neighbour in criminal and mental health matters. The Commission solicitor cannot give Mary legal advice because this would create a related matter conflict. However, she can give her general information about the Department of Housing complaints process.


6.3.1 Procedures

Like advice, minor assistance also involves obtaining relevant information relating to the client’s problem and assisting the client in the resolution of that problem. You are required to record on LA Office the name, address and other identifying details of the client and the nature of assistance provided, in brief. You are also required to keep a copy of any relevant documents such as letters or file notes of telephone conversations. The same guidelines as referred to in the provision of an advice service (section 6.2) apply to the provision of a minor assistance service.

6.3.2 Examples

Example 1

A client comes to the Commission asking for help in recovering a debt from a friend. A check on LA Office shows that a Commission solicitor advised the friend about a possible unfair dismissal action. Full details of the advice are recorded on LA Office including details of the debtor’s current employment. No related matter conflict would be created if the Commission solicitor


provided general minor assistance, such as drafting a letter of demand, or making a referral to another service provider, or downloading forms from the Local Court website. The solicitor could not give specific advice about the most appropriate enforcement action in this matter.


6.4.1 Procedures

Duty services involve advising or appearing for a client in relation to a matter in a court or tribunal where the appearance does not involve ongoing work in the matter. If further work is done in relation to the matter, this then becomes a minor assistance or representation service. You are required to record on LA Office, the name, address and other identifying details of the client and the outcome of the hearing. You are also required to keep a paper file of the matter. In relation to the duty service provided by the Mental Health Advocacy Service at Magistrate’s Hearings or the Mental Health Review Tribunal, it is generally not possible to do a conflict check as there are no facilities available to do this. In this case, unless you have previously acted for another person with an adverse interest, or otherwise have personal knowledge of confidential information relevant to another person with an adverse interest, you can provide the duty service. In relation to other duty advice services provided, a conflict check should be conducted if this is possible. If you or another Commission solicitor have previously provided advice, minor assistance or representation to another person with an adverse interest in the same matter, a conflict of interest arises and you cannot provide a duty service to the client. If you or another Commission solicitor have previously provided advice, minor assistance or representation to another person with an adverse interest in another matter, a conflict may arise. If you have obtained confidential information relevant to the current issue in dispute or if that information is recorded on LA Office, this may lead to a conflict. However, if you have no personal knowledge of the other matter and there is no relevant confidential information recorded on LA Office or the other matter in which assistance was provided is unrelated to the present matter, there is no conflict.

6.4.2 Examples

Example 1

A duty solicitor at the AAT is asked to assist an applicant in an immigration appeal. A check on LA Office shows that a Commission solicitor has


represented the applicant’s former wife in family law proceedings. There is no relevant confidential information recorded on LA Office. However, there is probably relevant confidential information held on the paper file. No related matter conflict would be created by the solicitor providing a duty lawyer service at the court. However, the service must be limited to advice, assistance or representation on the first duty appearance, and cannot extend to additional services provided once the solicitor returns to the office.


6.5.1 Procedures

Case or (representation) involves acting for a client in legal proceedings pursuant to a grant of legal aid. You are required to record on LA Office, the name, address and other identifying details of the client and the nature of matter. You are also required to record financial details of the client and all expenditure associated with the matter. You are required to keep a paper file in accordance with the Civil Law Practice Standards. If you or another Commission solicitor have provided advice, minor assistance or representation to the other party in the same matter or a related matter, a conflict of interest arises as you will then have access to confidential information which is relevant to the matter in dispute and there will be a possibility of that information being used to the detriment of the former client. If you or another Commission solicitor have represented the other party in an unrelated matter within the previous twelve months, a conflict arises as the Commission cannot act against a recent former client, even if there is no risk of any breach of confidentiality, due to the duty of loyalty. A conflict check must be done prior to providing a case service. If a conflict is indicated, the client can be provided with information or referral. The matter can then be referred to the Grants Division in accordance with the Referral Protocol. A conflict of interest does not arise if you or a Commission solicitor provided information services only to the other party.

6.5.2 Examples

Example 1

Coral has been illegally evicted from her rental premises. A check on LA Office shows that her landlord was seen by a Commission solicitor for tenancy advice. The details recorded show that the advice was in relation to terminating Coral’s tenancy. A same matter conflict would be created if the Commission acted for Coral in-house.


Example 2

June has applied for legal aid for a Family Provision Act application. A check of LA Office shows that the Commission has acted for one of the beneficiaries, John, in family law property proceedings. There is no relevant confidential information recorded on LA Office. However, an inspection of the file discloses details of John’s financial circumstances which are relevant to the family provision matter. A related matter conflict would be created if a Commission solicitor acted for June. Example 3

Edna is in dispute with her sister, Freda, over her residence of their jointly owned property. The Commission acted for Freda in proceedings in the AAT relating to her entitlement to a Centrelink benefit. This matter, which concluded six months ago, is not related to the current dispute. However, a duty of loyalty would prevent a Commission solicitor acting for Edna.


7 Definitions adverse interest – Two or more clients have "adverse interests" if at any stage prior to or during the provision of a legal service (including an advice or duty service) the Commission solicitor considers that two or more clients' interests diverge to the extent that the solicitor, in providing or continuing to provide the legal service, would be at risk of acting contrary to the interests of a Commission client. A Commission client could include a current client, a former client, clients on the same side of the record in proceedings (for example, co-accused or plaintiffs in civil proceedings), a child who is represented by an independent children's lawyer, or a child who has a separate representative. conflict check – A conflict check is a check on LA Office to see whether a Commission solicitor has previously or is currently providing legal services to a party who has disclosed confidential information which is relevant to the current applicant’s legal matter. A conflict check may require a check of opposing parties, co-accused, and other persons involved in the current matter who have an interest adverse to the applicant. A proper conflict check may also require a check for any legal services provided to an alleged victim or potential witness, or to the current partner of the opponent in family law proceedings. A conflict check may require a check of the relevant paper files and documents held by the Commission. duty lawyer service – A duty lawyer service is a legal service provided by a Commission solicitor attending a court, tribunal or place of detention at a court, being legal services consisting of appearing on behalf of a person and/or giving legal advice to a person at that place in relation to an imminent court event. If further work is done after the solicitor returns to the office, this further service is not part of the duty lawyer service, but is either a minor assistance service, or a litigation service. general minor assistance – General minor assistance services are similar to the provision of information, being minor assistance which does not require specific information about the client’s individual circumstances. These services might include printing out and providing forms to clients or making telephone calls to arrange appropriate referrals. information service – An information service is a service that provides information to people that is of general application about such matters as legal rights and responsibilities, alternative dispute resolution processes, legal, court and tribunal processes, and the availability of a grant of legal aid. Information services may also include referrals to other appropriate services which may be of further assistance, such as a referral to a private practitioner to make an application for legal aid, or a referral to financial counselling or family relationship services. legal advice service – A legal advice service is a service that provides specific legal advice in relation to a person’s individual circumstances, and


analyses the options available to that person to resolve his or her legal matter. If further work is done after the advice interview is concluded, such as researching an issue and then telephoning or writing to the client, this further service is not part of the legal advice service, but is a minor assistance service. legal service – A legal service is a legal advice service, a minor assistance service, a duty lawyer service or a litigation service. An information service is not a legal service. litigation service – A litigation service is a legal service provided under a grant of legal aid that provides access for the legally assisted person to a Commission solicitor who will represent them and assist them in resolving a legal matter that is before a court or tribunal. minor assistance service – A minor assistance service is a service that provides self-help assistance greater than that provided under a legal advice service but short of direct representation. Minor assistance services are designed to enable people to progress resolution of identified legal problems and may include oral advocacy and preparation of formal court or other relevant documentation. Minor assistance services may be provided during a legal advice interview. Any additional work done for a client following the conclusion of a duty lawyer service or a legal advice service, which does not form part of a litigation service, is a minor assistance service. Minor assistance services may be general minor assistance or specific minor assistance. related matter – Two matters are related if confidential information disclosed in one matter is likely to be relevant to an issue in dispute in the other matter. Two matters can be related even if they are in separate jurisdictions, and even if none of the parties are common to both sets of proceedings. relevant confidential information – Relevant confidential information is confidential information provided by another client which is relevant to an issue in dispute in the current client’s matter and which could be used for the benefit of the current client or to the detriment of the other client. referral – A referral is information provided to a client about a service provider who may be able to assist the client. The service provider may be a private legal practitioner, community legal centre or LawAccess, or may be a non-legal service provider. A referral may involve simply providing contact details and brief information about the services provided by the service provider. It could also involve telephoning to arrange an appointment, or providing information to the service provider about the client’s needs, either over the phone or in writing. same matter –A single set of proceedings, including any interim or interlocutory proceedings is the same matter. Two sets of proceedings involving the same parties and addressing similar issues are also the same matter, for example family law proceedings for parenting orders, and later


proceedings for variation of parenting orders. Original proceedings together with any appeal are also the same matter. specific minor assistance – Specific minor assistance services are minor assistance services that require specific information about the client’s individual circumstances. These services might include drafting submissions, orders or simple affidavits. unrelated matter – two matters are unrelated if there is no confidential information disclosed in one of the matters which is relevant to an issue to be determined in the other matter.


8 Limited services

8.1 Advice solicitors

Solicitors providing a legal advice service in family law, civil law or criminal law must conduct a conflict check before commencing the service. If a conflict would be created by providing legal advice, the service provided must be limited to an information service or general minor assistance. The client must be told at the commencement of the service that the Commission is not able to provide specific advice about their matter, but can only provide general information or assistance. The Law Society’s view is that a solicitor cannot tell the client that they have a conflict of interest. The Law Society recommends informing the client that we cannot assist “for ethical reasons”. It is important that the client is not given specific information about the earlier service provided. The client should not be permitted to provide details of the matter, but asked to give a general indication of the type of matter, and then provided with the appropriate general information. If it appears that the client requires specific legal advice, the solicitor should assist with a referral to an appropriate service provider. If possible the solicitor should contact the service provider and arrange an appointment for the client. If it is apparent that the client requires representation in court proceedings, they should be referred to a private legal practitioner who does legal aid work. If the matter is urgent, the solicitor should make an appointment for them. If the solicitor is not aware of a service provider who would be able to assist the client, the solicitor should refer the client to LawAccess.

8.2 Duty solicitors

8.2.1 Family law and civil law

Solicitors providing a duty lawyer service in family law and civil law should, if possible, conduct a conflict check prior to providing a service. If a conflict exists the service provided must be limited to assistance which does not require specific information about the client’s individual circumstances, such as the provision of forms, an adjournment application to allow the client to get legal advice, or a referral to another service provider. The client must be told at the commencement of the duty service that the Commission is not able to provide representation or specific advice about their matter, but can only provide general information or assistance. See


section 8.1 for further information on explaining the conflict problem to the client. The client should not be permitted to provide details of the matter, but asked to give a general indication of the type of matter, and then provided with the appropriate limited service. If it appears that the client requires specific legal advice or representation, the solicitor should assist with a referral to an appropriate service provider. If possible the solicitor should contact the service provider and arrange an appointment for the client. If it is apparent that the client requires representation in court proceedings, they should be referred to a private legal practitioner who does legal aid work. If the matter is urgent, the solicitor should make an appointment for them. If the solicitor is not aware of a service provider who would be able to assist the client, the solicitor should refer the client to LawAccess.

8.2.2 Criminal law

Solicitors providing a criminal law duty lawyer service will not conduct a conflict check prior to providing a service. If the duty solicitor is aware of a conflict from their own personal knowledge, they should proceed as for family and civil duty lawyers as set out in paragraph 8.2.1 above. If the duty solicitor is not aware of any conflict the solicitor should conduct the duty lawyer service on the basis that there is no conflict of interest. If a solicitor intends to do further work for a client when they return to the office, in the form of minor assistance, they should conduct a conflict check before undertaking that work. If a conflict exists, any further work must be limited to general minor assistance. If the solicitor had indicated to the client that some form of specific minor assistance would be provided, the solicitor should inform the client that this service cannot be provided. See section 8.1 for further information on explaining the conflict problem to the client.


9 Advice appointments

9.1 Introduction

This segment of the Guidelines is primarily directed to the role of Legal Support Officers who are required to interact with clients by telephone or in person.

9.1.1 Aim of these guidelines

The aim of these guidelines is to ensure that: • appropriate legal advice and assistance is accessible to those most at

need

• access to the Commission’s legal advice services is consistent across the State, and

• waiting times for advice services are as short as possible.

9.1.2 Telephone advice

LawAccess NSW is funded by the Legal Aid Commission to provide telephone information, advice and referral to all people living in New South Wales. LawAccess NSW is a dedicated call centre, and trained customer service operators and legal officers are available to assist clients over the telephone. LawAccess NSW also has a number of legal officers and priority is given to clients in certain situations such as where:

• there is a risk of harm • the matter is urgent • they live in a regional, rural or remote area • they have a disability • they have low levels of literacy • they are distressed, or • they have experienced difficulty in obtaining assistance.

All requests for telephone advice should be directed to LawAccess NSW unless the client has been in contact with LawAccess NSW or requires advice. If a client needs advice or further assistance staff can apply the guidelines for making appointments (see section 9.4 of these guidelines).


9.1.3 Referrals

A referral is the handing over or passing on of a client to another organisation. Effective legal referral assists the client to reach a suitable service provider with the least number of referrals and is appropriate to the clients need.

Before making a referral, you should try to do the following:

• identify the needs of the client including legal and non legal issues • identify the level of urgency, and complexity of the issues • identify the client's communication needs e.g. limited English, disability • provide accurate and up to date information, including possible

limitations or lack of availability of services. When you make a referral you should try to:

• provide the client with a realistic expectation of assistance from the service to which they are being referred, e.g. waiting lists, advice only, free

• identify and offer alternative referral options to the customer if

appropriate (remember one accurate referral is better than three uncertain ones).

9.2 Step one – Assess what kind of matter it is

9.2.1 Crime

Is the client appearing in court? If the court is serviced by your office ask: when is the court date? • Either tell the client a solicitor will see them at court, or ask client to seek

an adjournment. Give advice as to what documents the client should bring; or

• An appointment is made for advice – and client is told what documents to

bring. If the court is NOT serviced by your office, refer to the appropriate office.

9.2.2 Civil

Does the request fall into one of the Commission’s civil law specialist services?


• Migration – (refer to Head Office Government Law Group 9219 5780) • Social security (if call is about a social security prosecution, this is a

criminal matter and refer to paragraph 9.2.1. Otherwise if the call is made to head office refer to Government Law Group, otherwise refer to go to section 9.3 below).

• Veterans (Refer to Veterans Advocacy Service). • Mental health (Refer the caller to MHAS unless at a RO that handles

mental health work). Consider an Emergency Appointment. Regional offices with civil law programs should make provision for emergency appointments. Emergency appointments should only be used in dire situations such as an urgent dead line or time limit problem, or a looming court date. Remember to check if they have called LawAccess NSW, because they give priority to urgent matters. If the emergency appointment is filled:

• At Head office try calling clients booked in for the next day to see if anyone is intending to cancel.

• At Regional Offices tell the client you will call them back and consult

with one of the civil solicitors.

9.2.3 Family

Is it a child support matter? If yes, refer to the Child Support Service or to the Child Support Service’s 1800 line (1800 451 784), or make an appointment for advice for the client though ediary at the appropriate Legal Aid Office. Is the matter urgent? Consider an emergency appointment or advice clinic. Regional offices offering family law advice appointments should make provision for emergency appointments. Where appropriate, clients should also be referred to Head Office or Parramatta. If clients are unable to go to Head Office or Parramatta (where clients are seen without the need for an appointment), and there are no available emergency appointments, tell the client you will call them back and consult with one of the family law solicitors.


9.3 Step two - Refer to LawAccess where appropriate

Especially if: • the matter does not fit within a specialist service • is crime or civil, and • the client has NOT been in contact with LawAccess The Commission funds LawAccess to provide clients with immediate legal assistance over the telephone. Clients will initially speak to trained customer service officers who can provide a range of information about the law and legal processes. This includes a comprehensive database of legal and non-legal services for referrals if required. LawAccess NSW may refer the client to Legal Aid in matters where the Commission is able to assist further. In this circumstance it is appropriate to offer an appointment for advice.

9.4 Step three - Make an appointment

9.4.1 Circumstances when an appointment should be made in all program areas

a. The client was referred to the Commission by LawAccess NSW. b. The client has a disability and/or does not understand the reason for

referral to LawAccess and/or there are special circumstances. Special circumstances might include a client who presents in a seriously distressed state or alleges domestic violence or a client who is unable to make another telephone call.

c. The client has been represented by a Legal Aid Commission solicitor

previously in relation to this matter. d. The client states they have been referred by LawAccess, community

legal centre or other legal service provider. e. The client is unable to make another phone call and cannot be

transferred to LawAccess.


f. A non-government organisation, Centrelink or other government agency rings to refer the client and it is not a matter that can be dealt with by LawAccess.

9.4.2 Extra circumstances where an appointment should be made in family law

a. The matter is urgent. For example:

• There are pending court proceedings or there is some other reason for urgency, for example child abduction case or deadline to respond, or

• There is a risk of harm.

9.5 How to raise issues and address conflict with clients

Attached is an intranet page describing the circumstances where the client seeks advice or information. Scripts are included to ensure consistent and appropriate language is employed by staff when dealing with clients about these issues.


Legal Aid Commission of NSW

A General Guide for Staff on Conflict

1. If you have to inform a client that we are unable to help them (due to a

conflict of interest) you can say: A check of our records has shown that our lawyers are not able to help you with your legal problem. But, we can put you in touch with someone who can help you. LawAccess NSW is a free government telephone service that provides legal information, advice and referrals for people with legal problems. A) If the person is at a Legal Aid Office say What we will do next, is call LawAccess and refer you to one of their trained customer service officers. By transferring you now, you will be able to get some information about your legal problem sooner. B) If the person has called Legal Aid by phone say We will now transfer your call to LawAccess. One of their trained customer service officers will give you some information about your legal problem straight away. If you need a lawyer, LawAccess will connect you to one of their lawyers or give you the names of some lawyers in your area that can help you. Note: If the person was referred by LawAccess say LawAccess’s has done the right thing in referring you to us, but because they don’t have access to our records they didn’t know we would not be able to help you. (Then say the words from A or B above)

2. In a situation where the client asks you the reason why Legal Aid cannot help them you can say: Unfortunately, a legal aid solicitor will not be able to give you legal advice or appear for you in court because of a legal ethical situation that affects Legal Aid. The Law Society of NSW has rules that tell us when we can and cannot give legal advice to people. Those rules also say that we cannot discuss the reasons why we cannot provide advice.


3. Other referral information you can inform clients about: For free legal information or a referral to a lawyer who can help you, call LawAccess NSW on 1300 888 529 Monday to Friday for the cost of a local call anywhere in NSW. If you want to speak to someone in your own language call the free Translating and Interpreter Service on 131 450 and ask the interpreter to call LawAccess NSW on 1300 888 529. Do not hang up. You need to stay on the line while they contact LawAccess and interpret for you. The Translating and Interpreter Service is free and confidential. If you need legal representation and think you are eligible for legal aid you can go to a private lawyer and apply for legal aid though that lawyer. If legal aid is granted the private lawyer will represent you and Legal Aid will pay the costs. You should be aware that in some cases you may have to pay a contribution towards the cost of your legal representation. The Law Society’s Community Referral Service (9926 0300) can refer you to private solicitors who do legal aid work. If you want to check if you are financially eligible for legal aid, you can go to the Commission’s website at www.legalaid.nsw.gov.au and use the Means Test Indicator.

Documents

Practice guidelines for managing conflict of interest ... · Guidelines for managing conflict of interest within the Legal Aid ... 9 3.2.1 Same matter conflict ... At the same time