The Conflict Waiver That Arrived Too Late
Priya, a barrister, is briefed to advise Meridian Pty Ltd on a contractual dispute with its former supplier, Kestrel Ltd. Two weeks before the trial, Priya's instructing solicitor sends her a signed conflict waiver from Meridian and mentions in passing that Priya's former pupil master, David, now sits as a part-time member of the tribunal panel that may hear any appeal. Priya also realises that three years ago she drafted an opinion for Kestrel on a related supply agreement, though she has no recollection of the file and the opinion is not in her chambers' records. Meridian's waiver document addresses only David's panel role. The trial date is fixed and cannot move. Priya has no time to obtain a fresh waiver before the first day of hearing.
1. Identify the ethical issues Priya faces and explain how the duty of confidentiality interacts with the duty of disclosure to the court.
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Priya faces two overlapping conflicts. First, a former-client conflict: she previously acted for Kestrel on a related agreement, so information from that retainer may be relevant and confidential. Even if she cannot recall it, the duty of confidentiality persists and is not extinguished by forgetting; the risk is that she cannot identify what she knows. Second, a personal/associational conflict arising from David's panel role, which the waiver addresses only partially.
The duty of confidentiality to Kestrel is owed indefinitely and survives the end of the retainer. The duty of disclosure to the court is different: it requires Priya to disclose any matter that may affect her independence or the fairness of the hearing. These duties do not cancel out. She cannot cure a confidentiality problem merely by telling the court; nor can she stay silent about a conflict in order to protect a former client.
The correct sequence is: (1) search for and review the old Kestrel file; (2) inform Meridian of the former-client issue and the limits of the waiver; (3) if the conflict is material and non-consentable, decline the brief or return it; (4) if she proceeds, disclose the association with David to the court and to the other side. Because the trial date is fixed, the honest answer may be that she must return the brief and let the solicitor seek an extension or another barrister. Convenience does not override the conflict rules.
2. Meridian argues that because it has signed a waiver, Priya can proceed without further inquiry. Assess that argument.
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The argument fails for two reasons.
First, informed consent requires information. A waiver is only effective if the client understands the nature and extent of the conflict. Meridian's waiver was drafted around David's panel role and says nothing about Kestrel. Meridian therefore has not consented to the former-client conflict at all; it has consented to a different, narrower risk. A signature on an incomplete document is not informed consent.
Second, some conflicts cannot be waived by the client alone. Where a former client's confidential information is at risk, the former client (Kestrel) is the party whose consent matters, and Kestrel has not been asked. Meridian cannot waive Kestrel's confidentiality. Priya also owes an independent duty to the court and to the administration of justice that the parties cannot contract away.
Priya should therefore treat the waiver as covering only the David issue, and even then should confirm it is properly informed. She must not use the existence of a signed document as a substitute for her own professional judgment. If she cannot satisfy herself that no confidential information will be used, she should decline the brief.