OTHER COMPONENTS OF THE RESEARCH
An empirical study can reveal how conflicts impinge upon the modern law firm, and how firms are responding, but in order to judge the appropriateness of the strategies being employed it was necessary to do three other things.
First, I needed to examine the coherence of the present regulatory framework, which meant studying the Law Society rules and leading case decisions in tandem, viewing them in effect as a single system, if not necessarily a very coherent one. Little or no analysis had been undertaken of whether the rules adopted by the Law Society reflect the common law.[78] If the Law Society has imposed stricter conditions than the common law, what is its justification for so doing and are these reasons valid? Also, it is difficult to evaluate solicitors’ practice without reference to the rules by which, at least in theory, they are bound. The rules may be broken, but they provide a template against which some preliminary judgements can be made.Secondly, it was important to explore other strategies being developed overseas. The changes in the commercial environment which underpin developments in legal practice are not unique to the United Kingdom; they are a world-wide phenomenon and strategies for resolving conflicts are being developed in other jurisdictions. In the United States, for example, the American Bar Association found that conflicts were becoming such an issue for its members that it set up a task force to examine ways to assist lawyers to resolve potential problems.[79] There has also been empirical investigation of the ways that US practitioners manage conflicts of interest in practice.[80]
Finally on this comparative theme, it is apparent that solicitors are not alone in confronting these problems. The English Law Commission, for example, has studied the financial services industry.[81] Following changes to the structure of the financial markets in the mid-1980s, in particular the abolition of the Stock Exchange’s single capacity requirement and the development of financial conglomerates offering a wide range of services, the potential for conflicts to arise was thought to be much greater. It was therefore necessary to explore what models were being developed in that context in an attempt to manage conflicts.
It was also worthwhile to explore how the Bar and accountancy profession balance the competing interests involved. These professions offered potentially fruitful bases for comparison because they have similar responsibilities towards their clientele whilst having experienced the same changes in the commercial environment. These comparisons were unlikely to yield solutions to the problems confronting the solicitors’ profession, but they might nonetheless prove to be instructive.PLAN OF THE BOOK
In chapter 2 I examine whether the current regulatory regime governing solicitors’ conduct in conflict situations is appropriate for the commercial environment in which many law firms now operate. This chapter also reviews the Law Society’s rules governing conflicts of interest and compares this regulatory regime with that of the common law. Chapter 3 explores the way that related professions have responded to the difficulties presented by conflicts of interest. In chapter 4 I consider the approaches adopted in other jurisdictions, notably in the United States and in the Commonwealth. The following three chapters, chapters 5, 6 and 7, are devoted to an examination of the way that law firms in England and Wales respond to conflicts of interest in practice. Chapter 5 considers the means by which firms identify conflicts. Chapter 6 is concerned with the decision whether or not to act in the face of conflict. Chapter 7 examines the measures which are put in place when a firm decides that it will continue to act in a conflict situation. Chapter 8 reviews the main difficulties with the current regulatory regime and examines various possible strategies for managing conflicts in the future. Appendix 1 provides a full account of the research methods employed in undertaking the study which forms the basis of this work.