It is a central tenet of professional legal practice that a lawyer ‘should promote the interests of the client and avoid situations where those interests conflict either with the lawyer’s own interests or with those of another client.’[3]

In keeping with this, it has been asserted that ‘unless the client can confide absolutely freely in the lawyer, confident that the information will not later be used to his disadvantage, and confident that any proposed action will not be tainted by a contrary interest of the lawyer, then the lawyer will not be able to act effectively for the client.’^[4]

This book is concerned with those situations in which the above principles come under threat and the lawyer is faced with an actual or potential conflict of interest between two or more clients.

A conflict of interest has been defined as follows:

A person who acts as representative of another is in a conflict of interest situation if, either at the time when he accepts appointment or subsequently while he acts as a rep­resentative, there is a material interest of his own or of a third person for whom he also acts, and the pursuit or protection of that interest would create a substantial risk that he may not act in the best way to pursue or protect the interest of the person he represents.^[5]

The requirement not to act in a situation of potential or actual conflict of inter­est can be justified by reference to the principle of confidentiality and, as Boon and Levin point out, by reference to the principle of client autonomy. However, as those authors observe, there are also conflicting principles. For example, there is scope in commercial disputes to ‘conflict out’ lawyers as a cynical litigation tactic—in other words, to employ a ‘principle’ simply to gain an advantage in circumstances where the risk of information being transferred inappropriately is in practice extremely remote.^[6] So the principle of sustaining confidence in the profession can be at odds with a second principle, namely that of preserving the client’s freedom to instruct a lawyer of [his] choice.

Until relatively recently conflicts of interest received little attention from aca­demic writers. Abel, in reviewing professional failings, considered client com­plaints, financial misconduct and negligence, but he did not explore conflicts of interest as a specific area of difficulty.^[7] Professional bodies also have only recently started to issue consultation documents and detailed advice. In April 2000 the City Disputes Panel published a report giving practical guidance to practitioners on the subject of conflicts,^[8] and in June 2001 the Law Society issued a consultation paper inviting debate by its members on how the ‘difficult issue’ of conflicts of interest could be tackled.^[9]

This suggests that whilst conflicts of interest are hardly a new problem, they are now seen as giving rise to issues of considerable complexity, perhaps greater complexity than most academic writing on the subject acknowledges. Boon and Levin, for example, begin their discussion of conflict between existing and potential clients with the striking observation: ‘Obviously a lawyer cannot rep­resent one client whose interests conflict with those of another.’^[10] This state­ment, for all its apparent certainty, is almost immediately contradicted:

If a solicitor acts for a client who is suing a former client of the firm, then the solicitor may have access to confidential information about the latter. If this is the case, the solicitor should not act for the new client unless the firm can successfully erect a ‘Chinese wall’ which prevents all possibility of leakage of confidential information.^[11]

Here we have one strong normative statement, and a second, much weaker, in apparent contradiction of the first. In practice solicitors may be faced with a range of ‘conflict’ situations. When this happens, is it in fact ‘obvious’ that they should not act? What is meant by the term ‘Chinese wall’? Is it one phenomenon or several? Can a Chinese wall, whatever precisely is meant by this term, ‘pre­vent all possibility’ of leakage of information? If the various parties to the pro­ceedings differ in their views concerning the likelihood of ‘leakage’, whose views should prevail?

Boon and Levin were conducting a general exploration of legal ethics, and it was beyond the scope of their enquiry to undertake an independent empirical examination.

The above authors’ subsequent discussion refers to a need to balance two conflicting principles, namely the protection of client confidence in the profes­sion and the freedom of the client to instruct a solicitor of his choice.^[12] They refer to the case of Re a Firm of Solicitors^[13] in which the court had to weigh the protection of client confidence against the latter principle.^[14] They observe that ‘maintaining a balance between protecting confidence in the profession and the freedom to instruct a lawyer of choice is difficult.’^[15] It can be seen therefore that these authors move quite a long way from their initial assertion that ‘obviously’ a lawyer cannot represent one client whose interests conflict with those of another. Given that their self-imposed task was to identify the ethical principles which, broadly speaking, ought to underpin legal practice, this is entirely under­standable. However, it is extremely difficult to engage in a discussion of ethical principles without reference to the minutiae of practice. This is because ‘ethics’ will tend to appear rather more complex at close quarters than when principles can be considered separately from one another, being in effect viewed as abstractions.