Significance: principles on Rule 31 of the Legal Profession (Professional Conduct) Rules prohibiting solicitors from acting against former clients and persons “involved in or associated with” former clients in related matters; meaning of persons “involved in or associated with” former clients; “related matters”.
Where an individual consults a solicitor on behalf of a corporate entity (for example, a managing director of a company who instructs and consults the solicitor on a company matter) the same solicitor will be precluded from acting against the corporate entity in the same or related matter. That is not to say, however, that the solicitor is always free to act against all other persons apart from the corporate entity itself: .
R 31 does not extend so far as to include any employee of the client who had any involvement, no matter the nature of the involvement. This could not have been the intent behind r 31 of the PCR. An interpretation of r 31(1) of the PCR must be calibrated to strike a balance between protecting the former client and not unduly restricting the new client’s right to appoint counsel of his or her choice: .
The better reading of r 31 of the PCR is that it only precludes a lawyer from acting against persons “involved in or associated with” a former client in the original matter where they can also be said to be “as good as clients” or an “informal client.” There are two categories of persons which have been found to fall within the definition of an “informal client”. The first category concerns the situation where the associated/involved person is akin to the alter ego of the client. This may occur where the fortunes of the associated/involved person are so intertwined with the actual client that he/she may properly be described as someone as good as a client. The second category concerns the situation where the associated/involved person had divulged information above and beyond what he was required to: .
Whether the two suits constitute related matters must be viewed in light of the mischief that r 31 seeks to prevent. Clearly, where confidential information was provided in the former suit that is also relevant to the later suit, the rule is engaged. There is a clear interest in guarding against the disclosure of confidential information to a new client as well as the perceived disclosure of such information. Beyond this, it is clear as mentioned several times, that r 31(1) can be engaged even if no confidential information at all was supplied. The lawyer should not be placed in a position where he cannot adequately represent the new client: .
One useful (albeit not necessarily determinative) yardstick by which one can measure the relatedness of two matters is the confidentiality test: whether there is a real risk that the confidential information would be passed on to the subsequent client. This would presumably turn on whether the information obtained from the former client would be relevant to the subject matter of the subsequent retainer: .