Creating Conflict of Interest Rules
A code of professional ethics should advise and also seek to control any avoidable, unacceptable or unreasonable conflicts of interest between lawyers and their clients.38 Rules should be realistic.
This is especially important in the context of conflicts of interest because lawyers must refuse business where a conflict of interest arises. This potentially interferes with access to justice and the right of individuals to instruct their chosen lawyers.Conflict rules must potentially cover the four kinds of conflict situation discussed in this chapter. These are conflicts between the interests of the lawyer and the client, conflicts between the interests of a present client and a past client or clients in the
36 Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113.
37 ibid, at 125.
38 C Wolfram, Modern Legal Ethics (St Paul, MN, West Publishing, 1986) at 313. same and in different matters and conflicts between the interests of present clients. In the second and third of these situations the confidentiality of client information is an allied concern to conflict of interest.
A lawyer who knows something material about client A from past or present cases may inadvertently reveal that information to client B, to client As detriment. This could harm their interests. What the lawyer knows about client A may, perhaps even subconsciously, affect the lawyer’s performance for client B in a way that harms client A’s interests.
Finally, it is necessary to recognise that clients may want to consent to a clear or possible conflict. This may be because they have a common interest and want to save costs. It is arguable that they should be allowed to consent to a risk of conflict of interest provided there are adequate safeguards.
VII.