CLASSIFYING CONFLICT

It may be helpful at this point to review the different means of classifying con­flicts which have been employed to date. Essentially there are four. Conflicts can be classified by reference to:

1.

2. temporally, as defined by Glover;

3. subject matter, as defined by Finn;

4. subject matter, as defined by my informants.

All four classifications have something to commend them, but there is potential confusion because each is arrived at without reference to the other. So far I have not attempted any cross-reference to the different modes of classification. In summary the classifications are as follows:

i. Law Society Classification

The Law Society distinguishes conflicts simply by reference to whether the con­flict of interest is between solicitor and client or between one client and another:

1. solicitor/client;

2. client/client.

ii. Glover’s Classification

Glover offers a temporal classification:

1. simultaneous representation conflicts;

2. successive representation conflicts.

iii. Finn’s Classification

Finn defines conflicts by reference to subject matter:

1. same matter conflicts;

2. former matter conflicts;

3. separate matter conflicts;

4. fair dealing conflicts.

iv. Solicitor Firms’ Classification

In interviews with me, representatives of solicitor firms described their experi­ence of conflicts in a way which invited the following classification:

1. direct conflicts;

2. potential conflicts;

3. common-goal conflicts;

4. confidential-information conflicts;

5. commercial (or ‘fair dealing’) conflicts.

The Law Society’s classification does not take us very far in distinguishing dif­ferent conflict types. Solicitor/client conflicts, whilst important, do not figure largely in this analysis as I am not concerned with conflicts which arise between solicitors’ personal interests and those of their clients. The Law Society places all other conflict types within the one category, labelled client/client conflicts.

Glover’s analysis divides the Law Society’s client/client category into two. This is on the basis that either the solicitor’s duties to two or more clients come into conflict simultaneously, or the duty the solicitor owes one client precedes the duty to another client. This classification does not distinguish between the many different forms of simultaneous and successive representation conflict.

Finn, on the other hand, focuses upon the nature of the conflict—first, the conflict may be one which concerns the solicitor’s own personal interests; sec­ondly, it may concern parties who are involved in the same transaction; thirdly, it may arise because the firm is representing different parties in different trans­actions who have information relevant to one another; fourthly, the conflict may arise because the firm has information concerning a former client and is now asked to act against that client.

My informants, on the basis of their own practice experience, arrived—it would seem intuitively—at a more complex classification. They effectively divided Finn’s ‘same matter conflicts’, ‘separate matter conflicts’ and ‘former matter conflicts’ into a further four sub-categories, namely: direct, potential, common-goal and confidential-information conflicts. Each of the classifications which solicitors were impliedly making in the course of their interviews with me can be linked to the various classifications employed by Finn, Glover or the Law Society. These classifications, and the relationship between them, are repre­sented by Figure 1 below.