2 July 2010

Basic instincts

Oh no: making a mistake in bed

Q. I am acting for a wife in matrimonial proceedings. The husband is represented by separate solicitors. My client informs me that she has previously had a sexual relationship with that solicitor and he occasionally has his hair cut in her hair-dressing salon. She feels very uncomfortable. Is it appropriate for the other solicitor to act in these circumstances?

A. As a general rule, a solicitor is free to decide whether or not to take on a particular client (see rule 2.01 of the Solicitors’ Code of Conduct 2007). However, in these circumstances, the other solicitor would need to consider the following before agreeing to act:

1) Does the husband know of the relationship between his solicitor and his wife? If the relationship occurred during the marriage, then this will almost certainly be material information (see rule 4, guidance note 24 for what constitutes “material” information), particularly if the grounds for divorce are the wife’s adultery. If the information is material, the solicitor would have a duty to disclose it to the husband (rule 4.02).

Even if the relationship did not occur during the marriage, it could undermine the client’s confidence that the solicitor was acting in the client’s best interests if the husband subsequently found out about the relationship, and a solicitor would be ill-advised to act in these circumstances without first disclosing the relationship.

Is the solicitor satisfied that his previous relationship with your client does not impair his ability to act in his client’s best interests and to give independent and impartial advice (see rules 1.04 and 3.01(2)(b))?

Assuming that the association did not arise out of a solicitor-client relationship, the solicitor will not owe your client a duty of confidentiality; consequently, the fact that the solicitor may have acquired material information about your client as a result of their association (and would therefore have a duty to disclose it to the husband), does not prevent the solicitor from acting for the husband. However, if there is any prospect that the solicitor may be asked to give evidence, the solicitor would need to bear in mind the provisions in rule 11.05.