Research method

The methods employed in this research were essentially of three kinds. First, traditional archival work was undertaken. An analysis was made of professional guidelines issued by the Law Society and other regulatory bodies, of the relevant case law and Law Commission proposals, and of other academic commentaries.

Secondly, I undertook a study of the ‘trade press’⁷⁵ of both the legal and accountancy professions. Publications such as Legal Business, Commercial Lawyer, The Lawyer, and, more recently, Legal Week, provided a valuable insight into how law firms and lawyers operate and current thinking amongst the profession on most issues, including conflicts of interest. Accountancy and Accountancy Age provided a similar commentary in respect of accountants.

The third method was to approach members of the legal profession and their clients directly. Both barristers and (especially) solicitors participated in an empirical study.

I approached 100 firms of solicitors between 1 and 7 November 1997. These were the top 100 firms (ranked by number of fee earners) listed in the Legal 500.⁷⁶ I used the Legal 500 as a basis for selecting firms because it is geared towards commercial clients. Its self-imposed task is to ‘present the commercial client with a selection of solicitors and barristers to consider when faced with legal issues on which he or she requires specialist advice.’⁷⁷ The focus of this book is on conflicts of interest as experienced by commercial clients, rather than those experienced by private clients.

At the stage when I contacted firms I could not be sure which firms, from the very largest City firms to relatively modest-sized provincial firms, would pro­vide the most illuminating data on conflicts. I decided that it was not feasible to attempt a survey which would be representative of all firms with a significant commercial client base. Given the limitations of my own resources I decided to give particular attention to the larger firms. This was basically because I thought that the issue of conflicts of interest, and the need to ‘manage’ conflicts, would be more problematic where there was a large number of solicitors working within the one practice, and where the firm had a correspondingly large client base.

⁷⁵ The term ‘trade press’ is one which was also adopted by J Flood, in ‘Megalawyering in the global order: the cultural, social and economic transformation of global legal practice’, (1996) 3 International Journal of the Legal Profession 169. As he points out: ‘there was a time when no pro­fessional would talk to journalists, their role was to be self-effacing. With the intensified competi­tiveness of the professional service marketplace—both on behalf of clients and the firms themselves—professionals have been forced to cultivate a close, working relationship with the trade press, even to the extent of collaborating on joint seminars in such areas as law firm management and specialised areas of work.’

⁷⁶J Pritchard (ed), The Legal 500, 12th edn (Legalease Limited, London, 1999).

⁷⁷ Ibid, at 13.

Between March and May 2001 I also contacted representatives from the legal departments of five large commercial organisations. My purpose in so doing was to obtain clients’ views of ‘conflicts’ and the way the legal profession responds to conflict situations. I selected five clients to reflect different commer­cial sectors: transport, pharmaceutical, finance, telecommunications and retail. I also interviewed three practising barristers to obtain information on how conflicts affect their arm of the profession.

No empirical research was undertaken in relation to the accountancy profes­sion. However, the Institute of Chartered Accountants in England and Wales provided some advice and guidance early in the study. Other professional bodies also assisted by furnishing relevant materials. The Bar Council, City Disputes Panel and the Law Society each provided copies of consultation papers.^[77]