Terminating Fiduciary Obligations: Is There a Duty of Loyalty to Former Clients?

The law concerning judicial disqualification of lawyers acting against former clients currently depends on whether there is a risk of misuse of the former client’s confidential information. The House of Lords’ decision in Prince Jefri Bolkiah v KPMG held that fiduciary obligations do not survive the termination of the retainer. By contrast, in Spincode v Look Software, the Victorian Court of Appeal recognised a fiduciary ‘duty of loyalty’ following termination of the retainer, which involves a ‘negative equitable obligation’ enjoining lawyers from acting against a former client in the same or closely related matter. This article argues that this basis exists as a matter of fiduciary doctrine. Drawing on the late Paul Finn’s notion of ‘misuse liability’ as an aspect of the fiduciary principle, a lawyer acting against their former client in the same matter amounts to a misuse of fiduciary position even after the retainer’s termination.