SUMMARY

It has been shown in this chapter that the Law Society in England and Wales, in framing its regulations, adopts a much stricter approach to conflicts of interest than do some other regulatory bodies.

The justification given by the Bar Council for this apparently more relaxed attitude is that barristers do not work in partnerships. However, in practice it seems that more protection is likely to be offered to clients by large law firms which employ separate departments or offices. There is also the view that, by virtue of their acting as sole practitioners, barristers are imbued with the princi­ple of maintaining client confidentiality by means of an informal (but well understood) system of ‘walls’. This, of course, is open to question. It might equally be argued that an individual barrister has more to gain by acting uneth­ically than has a solicitor employed in a large partnership.

The fact that their members practise in partnerships has not stopped other regulatory bodies from adopting a ‘managerial’ approach to conflicts. Accountants provide one example. It could, however, be said that accountants and solicitors operate under very different conditions. Lord Millett emphasised that accountancy firms usually organise themselves within separate depart­ments.^[258] Law firms do not tend to operate on that basis.^[259] In addition, it is at least arguable that accountants are involved in a wider range of activities than are solicitors. However, the degree of specialisation by individual members within each profession will vary considerably, and it is by no means obvious that, overall, one profession is more ‘specialised’ than the other.

The Law Commission also accepts that regulatory bodies have the power to amend the fiduciary duties which their members owe to clients. It accepts that individual firms can amend the duties owed to their clients by means of con­tractual provisions, either expressly or by implication. Moreover, it specifically endorses Chinese walls as a means of managing conflicts within firms.

It can be seen, therefore, that the Law Society’s approach differs significantly from that of other regulatory bodies. Arguably, this approach, which effectively prevents its members entering into contracts with clients in order to amend the nature of the duty owed, would not survive a legal challenge. Nevertheless, the difference between the Law Society’s rules and the other regimes is striking.

Perhaps there is something fundamentally different about the type of service provided by solicitors which justifies this stricter attitude. In order to explore this question, the next chapter will analyse how conflicts of interest experienced by solicitors are treated in other jurisdictions.