Can a solicitor act against a former client?
Rebecca Stapleton 03-11-2022
In the past, it has been difficult for solicitors to act against previous clients, but a new case has opened the door to this changing. Solicitors can now act against their previous clients, in certain circumstances.
All solicitors owe a duty of care to clients to protect their confidential information. The leading case of Prince Jefri Bolkiah v KPMG  2 AC 222 found that a solicitor’s duty to preserve the confidentiality of client information continues after termination of the client relationship. Due to this ruling, it has often been difficult for solicitors to persuade a judge that by acting against a former client, the duty to protect that client’s confidential information would not be breached. As such, it has generally been considered a conflict of interest for solicitors to act against their former clients.
However, the recent decision of The Bank of London Group Ltd v Simmons & Simmons LLP  EWHC 2617 (Ch) has found that clients are not automatically entitled to prevent their former solicitors from acting against them simply because the law firm holds confidential information about them.
The court found that the relevance of the confidential information held is key. For solicitors to be prevented from acting, the former client must be able to satisfy the court that the confidential information is relevant to the claim now being brought. It is not enough to simply assert that the solicitor cannot act as they have represented that former client previously.
In this case, the solicitors, Simmons & Simmons had only done limited amounts of regulatory work for The Bank of London Group Ltd which could not be shown to have any relevance to the passing-off claim that Simmons & Simmons were now instructed to act in.
Furthermore, the court found that there must be a real risk of disclosure of the confidential information for solicitors to be prevented from acting. In the modern age of technology, law firms have many measures of preventing the movement of information internally within a firm, with the ability to put barriers and blocks in place at an early stage to prevent fee earners from accessing certain files. Therefore, if a solicitor makes a genuine and sufficiently early attempt to protect former client’s confidential information, then this should be given weight by the court when considering whether it is permissible for the solicitor to act.
In summary, this recent judgment demonstrates a shift from the heavy burden that solicitors used to bear in showing that there is no real risk of disclosure of client information, to a burden that is not invincible. As such, we are likely to see more solicitors permitted to act against former clients.