Foundation

This idea that conflicts of interest must be avoided is often said to derive from the adversarial nature of common law systems. Adversarial systems require that each

¹ AC Grayling, The Meaning of Things: Applying Philosophy to Life (London, Weidenfeld and Nicholson, 2001) at 51.

party to a dispute has someone on their side whose duty it is ‘to advocate its own case and to assault the case of the other’ irrespective of the moral or other merits of that client or the case.² Whilst rules on conflict of interest and confidentiality are closely connected with the adversarial process, they can also be justified indepen­dently of it.

Rules against conflicts protect client autonomy. A lawyer is retained by a client in order to do what the client would have done for him or herself, given the necessary knowledge, skills or time. The lawyer provides access to the law, increasing the client’s ability to engage with society.³ The justification rooted in client autonomy applies just as much to non-contentious business, such as making wills or drafting contracts, as to contentious business. The need for the lawyer to act disinterestedly, in the interests of the client alone, is important in any context.

Conflict of interest is sometimes closely linked to confidentiality, as shown in the previous chapter in relation to the treatment of lawyers with an apparent conflict of interest between past and present clients. Unless clients can confide absolutely freely in the lawyer, confident that the information will not be used to their disadvantage, they cannot be sure that lawyers are willing to act for them as they would act for them­selves. If clients cannot be sure who else their lawyer owes allegiance to, they cannot be sure how frank they can afford to be.

III.