I have known various clients who consulted a number of solicitors prior to deciding which was the right “fit” for them. I would hope this is standard practice however I doubt that in reality many people do and instead instruct the first lawyer they see. What if though you consult and instruct a
solicitor with whom your other half has already consulted? Will the solicitor still be able to act for you or will he/she be forced to refuse your instruction? If the answer is no, clearly a strategic interview with all of your local solicitors would mean your other half cannot instruct anyone close to
home – a brazen tactic indeed.

In a recent case the High Court considered this issue and determined that eleven different issues arose, the most significant of which are

  1. Imparting information in contemplation of a relationship will suffice to create a duty upon the solicitor to protect the information imparted.
  2. The solicitor must decide whether he can act bearing in mind his professional duties however the court retains the power to prevent him from acting.
  3. There is no absolute rule that a solicitor cannot act in a matter against a former client
  4. The information imparted by one client must be relevant to the other client for a conflict to arise though if the solicitor can show there is no real risk of disclosure of that information the court will not prevent him acting.

In this particular case (ZS v FS [2017] EWHC 2660) a short meeting in which nothing confidential was imparted to the solicitor and only general discussions took place, the court found that no confidential information had been imparted in the first place and so the court did not even go on to consider whether there was a real risk of disclosure. As such the Court did not rule out a solicitor for acting for the other half on a divorce matter following this initial consultation. The case was also marred by what appeared to the court to include strategy and manoeuvring on the part of the husband who was trying to ensure his wife could not instruct particular solicitors.

The High Court has therefore effectively made clear that merely interviewing and consulting with various solicitors with a view to excluding them from representing the other side will no longer be treated as an absolute bar to the solicitor then acting against you. I think the point of the judgement is that genuine disclosure to obtain advice with a view to instructing a solicitor would effectively rule him/her out of acting for your other half. Merely interviewing extensively on a strategic basis however will not.