Index
Page references for notes are followed by n
Abel, R, 2, 7-8, 12, 189
Accountancy, 14
Accountancy Age, 14 accountants, 51, 53-4, 179n
KPMG decision, 35M0 regulation, 63-9, 72-3
ad hoc Chinese walls, 40-1, 149-50, 155, 188
Australia, 89-90
client perspective, 160
Advisory Committee on Legal Education and
Conduct (ACLEC), 183
American Bar Association (ABA), 15-16, 78-81
aspirational regulatory framework, 184-5
Association of Chartered Certified
Accountants (ACCA), 54
Attorneys’ Liability Assurance Society, 78
Australia, 75, 76, 186 simultaneous representation, 81, 93 successive representation, 86, 88-90
Bar, 52-3
Bar Code of Conduct, 55-6
Rule 203, 53
Rule 501, 56
Rule 504.4, 57
Rule 506, 56-7
Bar Council, 15, 53, 55-63, 72
Barings Bank, 104, 125-6
barristers, 51-3 cab-rank rule, 58, 103 regulation, 55-63, 72 research methodology, 14, 194
beauty contests, 97, 98
big bang, 5
Bingham LJ, 168
black books, 105
Boon, A, 1, 2-3, 52, 53, 184
Browne-Wilkinson, Sir Nicholas, 29-30,
48
Buckley LJ, 21, 30
business conflicts see commercial conflicts
cab-rank ruled, 58, 103
Canada, 75, 76, 138n, 180
potential conflicts, 98-9 simultaneous representation, 81, 82 successive representation, 82-5, 93
Canadian Bar Association, 83-4
Chartered Institute of Management
Accountants (CIMA), 54
Chartered Institute of Public Finance and
Accountancy (CIPFA), 54
Chinese walls, 2, 42-3, 144-5, 160, 188 accountants, 66-9, 73
Australia, 89-90
Barings Bank, 125
Canada, 83, 84-5 client perspective, 160
Guide to Professional Conduct, 25-7 institutionalised, 40-2, 167, 170
KPMG decision, 35M0 large City firms, 140, 148-54, 175
Law Commission findings, 70-2, 73 medium-sized and national firms, 132, 133, 154-7
New Zealand, 87-8 potential conflicts, 104-5, 107 proposals, 180-1 and Rakusen, 28-32 small and provincial firms, 135-6, 154-7
City Disputes Panel, 2, 15
Chinese walls, 144-5 confidentiality, 19
City of London Law Society, 131 classification of conflicts of interest, 18 simultaneous representation, 44 working party proposals, 164-6, 177, 180-1
client autonomy, 1, 188
model, 181-2
client checks, 100-1
client consent, 175 informed, 46, 181 measures, 156-7, 158 simultaneous representation, 167, 173, 174,
187
clients:
consumerism, 5-6
frustrated, 102-3 and protective measures, 153-4, 158-61 protecting identities, 105 research methodology, 15
safeguarding interests, 107, 175-6 views on conflicts, 119-20
Code of Conduct for Lawyers in the European
Community (CCBE), 77, 90-2, 93
commercial conflicts, 102, 113-14, 115
clients' views, 120
frustrated clients, 102-3
Law Society guidance, 119
Commercial Lawyer, 14
common goal conflicts, 111-12, 115, 146 clients' views, 120 large City firms, 126
Law Society guidance, 118
selecting measures, 147, 152-3, 154 Companies Act 1967, 3 competing interests, 116 competition, 4-5, 189 cones of silence, 145
Canada, 83
large City firms, 148
New Zealand, 87-8
small and medium-sized firms, 156, 157 confidential information conflicts, 112-13, 115, 146
clients' views, 120
large City firms, 126-7
Law Society guidance, 118
selecting measures, 147, 153, 154 confidentiality, 1, 8, 23, 43
accountants, 64-5
Bar Code of Conduct, 56
breaches, 141
Chinese walls, 26
clients' identities, 105
Guide to Professional Conduct, 22, 164,
165
potential conflicts, 103-5
time limit of duty, 18-19
see also successive representation conflict checks, 99-101, 106-8
confidentiality, 103-4
evaluating data, 106
conflicting out, 1, 172-3, 186 conflicts of interest, 1-3
classification, 17-18, 110-16, 117
empirical evidence, 12-16, 173-8
Law Society rules and legal principles, 10-12, 49, 164-73
possible ways forward, 178-86
selecting measures, 146-57
see also direct conflicts; measures; potential conflicts; simultaneous representation; successive representation
consumerism, 190
contracts:
implied terms, 48-9
Law Commission findings, 69-70, 73 Cotterrell, Roger, 179
Council of the Bars and Law Societies of the
European Union (CCBE), 76-7, 90-2, 93 Court of Appeal, 62
Court of Appeal (New Zealand), 87-8
Cozens-Hardy MR, 21, 27, 30 Croom-Johnson, Sir David, 30-1, 32
de Groot-van Leeuwen, L, 182, 184 decision-makers, 120-2 decision to act, 109-10, 116, 122-3, 140-1 clients' views, 119-20
commercial conflicts, 113-14, 119
common goal conflicts, 111-12, 118 confidential information conflicts, 112-13, 118
direct conflicts, 110-11, 116, 118
large City firms, 123-31
medium-sized and national firms, 131-4 potential conflicts, 111, 119 small and provincial firms, 135-9 deregulation, 181-4, 190 direct conflicts, 110-11, 115, 146
large City firms, 125-6
Law Society guidance, 116, 117 medium-sized and national firms, 133 selecting measures, 147
empirical research, 12-13, 15-16
methodology, 13-15, 191-200 ethical walls see Chinese walls ethics, 189-90
accountants, 68
barristers, 59-60
mega firms, 171
and training, 99n
European Union, 76-7, 90-2, 93
fair dealing conflicts, 17, 18, 114, 115
Federation of Law Societies in Canada, 82, 84-5
fiduciary duties, 23-4, 49
barristers, 53
Clarke Boyce v Mouat, 45-6
financial services industry, 55
Kelly v Cooper, 48
Law Commission findings, 69-72, 73
New Zealand and Australia, 90
same matter conflicts, 45
separate matter conflicts, 48
simultaneous representation, 171-2 successive representation, 170-1
Financial Services Act 1986, 54-5 financial services industry, 5, 16, 51, 54-5 Finn,P,18,27-9,45,114,115-16, 117 Fletcher Moulton LJ, 21, 24, 29, 30, 31 former matter conflicts, 18, 115 freedom to instruct a lawyer of choice, 2, 3, 33 frustrated clients, 102-3 full-scale Chinese walls, 148-50, 160, 175
gardening leave, 145-6
Glover, J, 18, 45, 114, 115-16, 117
Goode, RM, 1
Gower, Professor, 71
Guide to the Professional Conduct of Solicitors, The (Law Society), 9—11, 14, 22, 72,73,93, 193
Chinese walls, 25—7, 29
classification of conflicts, 17
commercial conflicts, 119
common goal conflicts, 118 confidential information conflicts, 101, 118 conveyancing, 46n
cross-border activities, 92
difficulties, 163-7, 173
direct conflicts, 116, 117
enforcement, 178-9
large City firms, 124-5, 127, 131, 140, 177 medium-sized and national firms, 131-3, 140-1, 177
potential conflicts, 96-7, 119 simultaneous representation, 43-5, 46-7, 168
small and provincial firms, 135-8, 140-1, 177-8
successive representation, 18-20, 22-4, 32-3 Guide to Professional Ethics (ICAEW), 64-6, 67
Hoffmann J, 24-5, 29-30
implied terms, 48-9
Law Commission findings, 69-70, 73 informed consent, 46, 157, 158, 167, 181 Inns of Court, 52
Institute of Chartered Accountants in England and Wales (ICAEW), 15, 54
regulation, 64-6, 67
Institute of Chartered Accountants in Ireland (ICAI), 54
Institute of Chartered Accountants in Scotland (ICAS), 54
insulation walls see Chinese walls
Ipp J, 169
Laddie J, 40-1, 42
large City firms, 123, 185, 187
and deregulation, 184
Law Society rules, 177, 178
potential conflicts, 174-5
selecting measures, 148-54, 160, 175
Law Commission:
Chinese walls, 38-9
fiduciary duties, 55, 69-72, 73
financial services industry, 16
separate matter conflicts, 49
Law Society, 8-9, 15, 49, 51, 53, 164
CCBE Code of Conduct, 77, 92 classification of conflicts, 114, 115-16,
117
detailed framework of rules, 179-80
enforcement, 178-9
large City firms, 124 medium-sized and national firms, 133 narrowly-defined rules, 180-1 potential conflicts, 108
Regulation Review Working Party, 2, 166, 177-8, 187
small and provincial firms, 135
see also Guide to the Professional Conduct of Solicitors, The
Lawyer, The, 14
Legal 500,14
Legal Business, 14
legal profession:
changes, 3-8, 75, 189-90 effect of broken rules, 176-7 public confidence, 1-2, 3, 22-3, 164, 186 regulation, 8-10
see also barristers; solicitors
Legal Week, 14
Levin, J, 1, 2-3, 52, 53, 184
Lightman J, 33-5
litigation, 185-6
Lord Chancellor’s Advisory Committee on Legal Education and Conduct, see Advisory Committee on Legal Education and Conduct
loyalty, 172
Marre Committee, 5-6
Mathews, Michael, 163
matter checks, 101-2
measures, 10, 143-4, 160-1, 175 available options, 144-6 client perspective, 158-60 large City firms, 148-54, 160, 175 selecting, 146-8
small and medium-sized firms, 154-7 see also Chinese walls; cones of silence medium-sized and national firms, 123
Chinese walls, 154-7
Law Society rules, 177-8 measures, 175 potential conflicts, 174, 175 mega firms, 3, 6, 7, 75, 171, 190
New Zealand, 81-2
Midgley, JR, 11-12
Millett, Lord, 37-40, 45, 48, 66, 73, 171 mini-walls, 148, 150-4, 160
Mitchell, A, 47
multi-disciplinary partnerships (MDPs), 7, 8,
54, 67
Neuberger J, 41-2, 43
New Zealand, 76, 186
simultaneous representation, 81-2 successive representation, 86-8, 90, 93
Nicolson, D, 173, 183, 184-5
Office for the Supervision of Solicitors, 137—8,
141
Otton LJ, 36
Parker LJ, 30, 31-2 potential conflicts, 95-7, 106-8, 111, 115 decision-makers, 120-2 decision to act, 109-10, 140-1 ensuring confidentiality, 103-5 evaluating data, 106 frustrated clients, 102-3 large City firms, 123-31 Law Society guidance, 119 medium-sized and national firms, 123, 131-4 obtaining instructions and conflict checks, 97-102
protecting clients' identities, 105 regulation, 10-11, 165
small and provincial firms, 123, 135-9
Privy Council, 46, 48 professional autonomy model, 182-4 public confidence in profession, 1-2, 3, 22-3, 164, 186
public perception, 129
Pumfrey J, 36
Regulation Review Working Party (RRWP), 2, 166, 177-8, 187
relevant confidential information, 18-19
Rix J,60-1
same matter conflicts, 18, 115 separate matter conflicts, 18, 115
Shapiro, S, 172-3, 179-80
Sheldon, M, 22-3 simultaneous representation, 18, 43-5, 49, 114,
115, 167-8
arguments for and against allowing, 171-3
Australia, 81, 93
Canada, 81, 82, 93 changes to rules, 187 clients' voice, 188
European Union, 91-2, 93 large City firms, 174
New Zealand, 81-2, 93 same matter conflicts, 45-7 separate matter conflicts, 47-9 small and medium-sized firms, 174
US, 79-80, 93
Slind-Flor, V, 95 small and provincial firms, 123
Chinese walls, 154-7
Law Society rules, 177-8 measures, 175 potential conflicts, 174, 175 solicitor/client conflicts, see Fair Dealing
Conflicts solicitor/client relationship, 8, 22-4, 33, 43, 188 client autonomy model, 181-2
solicitors, 53
cab-rank rule, 103
regulation, 8-10
research method, 14 Solicitors Act 1974, 10 solicitors' firms, 14, 123, 191-200
approach to conflicts, 122-3 classification of conflicts, 114, 115-16 compliance with regulations, 174 see also large City firms; medium-sized and national firms; small and provincial firms Sopinka J, 83 Staughton LJ, 31, 32, 47 Steyler J, 88-9 storage, 146, 153, 154 successive representation, 18-22, 42-3, 114, 115, 167
applying principles, 32-5
arguments for and against allowing, 168-71
Canada, 82-5, 93
court intervention, 188
European Union, 92 institutionalised Chinese walls, 40-2 KPMG decision implications, 39-40 large City firms, 174 measures, 143-4
New Zealand and Australia, 86-90, 93 potential conflicts, 101
Rakusen and Chinese walls, 29-32
Rakusen endorsement, 24-7
Rakusen and modern practice, 27-9
Rakusen reconsideration, 35-9 rationale behind rules, 22-4 small and medium-sized firms, 174 US, 80-1, 93
Supreme Court, 10
Supreme Court of Canada, 75, 82-4
taint shopping, 99 tendering, 97 trust, 157, 158-9, 160, 176, 186-7
United States, 15-16, 76, 77-81, 93, 178n,
186
conflicting out, 172-3, 180 decision-makers, 120-1 legal profession, 7n potential conflicts, 107
Walker J, 41, 42-3, 169 Webb, J, 173, 183, 184-5 Western Australian Supreme Court,
88-90
Woolf, Lord, 36-7, 170
3. Common Goal Conflict
If several parties wish to put together a deal, each will have the same overall objective in the sense that they all wish to complete the proposal successfully.
Their interests may nonetheless be different. Moreover, although all are amicable at the beginning of the project, a dispute may arise at any stage.3 4 Should they4 See further OJ Sloane, ‘Serving Two Masters May Jeopardize Client Interests’, National Law Journal, 25 November 1996, p B7: ‘... a lawyer’s professional judgment or ability to pursue all courses of action may not be compromised in situations in which one or more equally sophisticated
7 See above at 102 and OJ Sloane, n 4 above: ‘The sales pitch to a potential client may elevate the indirect conflict of interest to a benefit. The lawyer could convince the client that he or she should be represented by that lawyer because the lawyer has an excellent relationship with the other side, has represented the other side or is a personal friend or business associate of the chief executive or principals of the other side. The other party may in fact have even recommended the lawyer to the client, which the client takes as an endorsement of the lawyer or as an implied or actual threat that to fail to engage that lawyer will result in the clients getting a less desirable deal from the other party.’ See also D Arthur, ‘Building on the Great Wall of China’, Legal Week, 22 July 1999, p 23: ‘Clients often target specialist firms because of the perceived benefits in using a firm with industrywide clients. The lessons learned while acting for one client can be passed on to others.’