Naturally, many lawyers form personal relationships with others who work within or alongside them in the justice system, including opposing counsel, prosecutors, and police officers.

There are both subjective and objective elements to the question of whether a relationship with another party compromises – or could compromise – your professional boundaries, and it is therefore not possible to define precisely which personal relationships with third parties should give lawyers cause for concern. Instead, you should be aware of the factors that are relevant to this question.

Close personal relationships 

A close personal relationship – such as a family, close friendship, cohabitation or sexual relationship – with opposing counsel or a prosecutor or police officer in your client’s case can call into question your independence, even if only on the basis of appearance (see Gino Dal Pont’s 2016 Lawyers' Professional Responsibility, at [17.70]). 

The key concern in this situation is that you may disclose confidential information, even if only inadvertently, or may otherwise conduct the case in a fashion inconsistent with the duty to the court and/or to your client. 

There have been applications to disqualify lawyers whose spouse or partner represents another party to the matter, grounded in the court’s inherent supervisory jurisdiction over its own officers.

Whether or not the court will exercise its jurisdiction depends on the facts of each case; in particular, the nature of the proceeding, the nature of the relevant relationship, and the extent of involvement of each of the lawyers. … Any curial zeal to disqualify, justifiably abates where the lawyers are not directly involved in the litigation. Judges do not wish to impinge on personal relationships unless, because of the lawyers’ direct exposure to the matter, and its particular circumstances, to order disqualification is the only apt response. (Gino Dal Pont’s 2016 Lawyers' Professional Responsibility, at [7.55]).

Generally, a familial, close friendship or cohabiting relationship, or a current or recent casual, periodic or long-term sexual relationship, with opposing counsel or a prosecutor or police officer involved in your client’s matter, should give you pause to consider whether you should be acting for them and/or whether to disclose any such relationship to them. 

It is important not to put yourself in a position where your independence from the police, a prosecutor or opposing counsel could be questioned. Even when you believe that a close personal relationship with another lawyer or a police officer does not affect your independence, it may be prudent to disclose any such relationship to your client. You can then assuage any concerns they may hold about you disclosing their confidential information, even if only inadvertently, or otherwise conducting their case in a way that is inconsistent with their best interests (see Gino Dal Pont’s 2016 Lawyers' Professional Responsibility, at [17.70]). 

In R v Szabo [2000] QCA 194, the appellant’s conviction was set aside because the non-disclosure of an intermittent de facto relationship between the prosecutor and defence counsel was held to raise, in the mind of an ordinary fair-minded citizen, a reasonable suspicion that justice miscarried. Thomas JA found that defence counsel ‘was under a duty to inform the appellant of the past and present situation to the best of his ability just as he would have been obliged to do if he and Ms B were still in a continuing relationship’ (at para [64]). The appeal was allowed, not because of ‘any perception that an innocent man has been convicted, but on the ground that it may be perceived that he did not have a fair trial’ (at para [81]).

Caution should also be exercised in terms of having a commercial relationship with another lawyer. Some clients may be upset if they become aware, after a disappointing result, that their lawyer and opposing counsel have a significant commercial relationship with each other. It may be prudent, if you find yourself opposed to a lawyer with whom you have a significant commercial relationship, to disclose the fact to the client and give them the opportunity to brief alternative counsel if they are troubled by it.

You might want to seek advice from your legal practice manager, a principal lawyer, or the LIV Ethics Support Line, as to whether to disclose to a client a personal or commercial relationship with opposing counsel, a prosecutor or police officer, or whether to consider withdrawing from the matter and referring your client to another lawyer. 

The appearance of over-familiarity 

It is common for clients to be wary of what they perceive to be over-familiarity between their lawyer and opposing counsel, prosecutors or police officers, even where such relationships are based purely on professional courtesy, or a degree of familiarity, collegiality or friendship that may be expected when professionals encounter each other regularly in their day-to-day work. 

Criminal law clients may be particularly concerned if they perceive that you have a personal relationship with the person responsible for prosecuting them. 

Such collegial relationships do not necessarily compromise professional boundaries, but it is wise to discuss and clarify any issues with your client, if they appear to hold or raise concerns about your independence.

A note on the Human Source Management Act 2023

The Royal Commission into the Management of Police Informants recommended establishing a legislative scheme for the management of human sources, and this recommendation has been implemented following the passage of the Human Source Management Act 2023.

It is important to be aware that, although the Act permits Victoria Police to register lawyers as human sources and use privileged information in specific circumstances (i.e. with the prior authorisation of the Supreme Court of Victoria), the Act does not change lawyers’ professional obligations and duties. 

Lawyers are ethically and professionally obliged to maintain client confidentiality, other than in specific and confined circumstances. If they choose to inform on their clients to police they are likely to do so in breach of this obligation, as well as their obligation to act in their clients' best interest, and disclose or avoid any potential or actual conflict of interest. 

Fractious relationships 

Your independence and objectivity can be affected not only by relationships with other parties that may be considered too close, but also by relationships which are disharmonious or based on dislike or distrust. A fractious relationship with another lawyer, prosecutor or police officer may be a result of an existing relationship with them, previous experience, or animosity between your clients becoming personal and seeping through to your professional relations (see Gino Dal Pont’s 2016 Lawyers' Professional Responsibility, at [21.150]). 

Regardless, your professional interactions with opposing counsel, prosecutors or police officers must be characterised by the same principles of good faith, honesty and fairness required in your relations with clients and the court (Gino Dal Pont’s 2016 Lawyers' Professional Responsibility, at [21.05]). Personal animosity can cloud your judgement and personally abusive tactics can violate your professional obligations and hinder the effective administration of justice (Gino Dal Pont’s 2016 Lawyers' Professional Responsibility, at [21.150]).