These guidelines have been prepared by the Law Society of New South Wales.
Their aim is to assist law practices guard against the risk of a breach of the duty of confidentiality owed to former clients. By providing guidance on the factors typically taken into account in constructing an effective barrier these guidelines may assist to reduce the occurrence of successful challenges in the courts and otherwise to the effectiveness of information barriers.
An information barrier, properly constructed taking into account the issues set out in these guidelines, is an important element in ensuring that the duty of confidentiality is maintained and allowing a law practice to act against a former client without breaching its duty to preserve the confidences of that client. It may also present an effective rebuttal of the presumption of imputed knowledge.
These guidelines are intended to provide a fair and objective basis upon which to assess the adequacy of measures taken by a law practice. It is important to note that whether an information barrier will be effective depends on the facts of each individual case.
An information barrier is of itself no solution to a situation where there is a conflict of interest between one client and another client of the law practice. An information barrier does not remove the fiduciary duty of undivided loyalty which a law practice owes to a client. In such situations a law practice may only act with the fully informed consent of both clients.
The Law Society encourages law practices to employ these steps as minimum standards, adding additional safeguards where appropriate when an information barrier is to be established. They should be read in conjunction with the existing rules and law relating to confidentiality.