SUMMARY

At the beginning of this chapter five examples of conflict situations were given, coupled with the Law Society’s approved response in each instance. After reviewing the criteria adopted by various firms it would seem that only nine out of 30 claimed to act entirely in accordance with the regulations.

The remaining 21 firms adopted differing approaches depending on their size, client-base and location. Firms in Group one—the very large City firms— appeared to pay little or no attention to the Law Society’s rules and were pre­pared to act in most conflicts other than where clients were directly opposed. In most of these situations the consent of the parties was required before the case would be taken on, although where firms considered that there was little or no risk of a complaint being made they were prepared to act without authority. Individual fee-earners had no reason to act in opposition to the firm’s strategic goals as they rarely had to give up their clients. In most cases a way was found to accommodate the wishes of all parties. Thus, these firms’ responses to the hypothetical examples given at the beginning of the chapter would be as fol­lows.

a) They would continue to act for either Tom or Jerry, but not both. The deci­sion as to which one to drop would be made after an assessment of the long­term commercial interests of the firm.

b) Both rival bidders would be represented.

c) All parties involved in the construction of the motorway would be repre­sented.

d) The firm would act against BSE if they concluded they were not in possession of relevant confidential information. Some firms would act even if in posses­sion of such information, at the same time erecting a Chinese wall.

e) John Brown would continue to be represented and Robert Gibbs would be prohibited from having anything to do with the case. Firms would usually seek authority from Wallis Williams for this action.

f) The firm would represent both ABC Ltd and Bright Books.

Firms in Groups two and three, namely the medium-sized City, national and provincial practices, tended to feel more bound by the legal and professional rules. Most approached conflicts with a belief that it was not practical to func­tion entirely within the rules and so they attempted to work within the spirit rather than the letter of the law. These firms were very much of the view that they should act only where they had obtained the consent of all parties to the conflict. Thus, they would act for the rival bidders if they both agreed; likewise for the various parties involved in the motorway construction; and also for ABC Ltd and Bright Books. The remaining situations would be judged by reference to Law Society guidelines. Where they could continue to act for only one client, their decision, like that of the larger firms, would be based on consideration of long-term profitability.

Where these two groups of firms divided was in the pressures which they faced when reaching a decision. The medium-sized City and national firms were very much influenced by commercial considerations, including their desire to compete with the very large firms. At the same time, the danger of individual fee­earners taking a risk in their own interests was greater. Provincial firms, on the other hand, were able to keep a closer watch on their fee-earners. They too were influenced by commercial considerations. However, in their case this reflected a desire to maintain income in the short and medium term, rather than to increase the scale of their operations.

Whether these firms were too sanguine in asserting that their approach to, in effect, ‘managing’ conflicts prevented any breach of client confidentiality is a matter which it is difficult to determine with confidence on the basis of the empirical methodology which I employed.

On the other hand, some provincial firms had been the subject of complaint to the Office for the Supervision of Solicitors on this very point, perhaps sug­gesting that there is a level of dissatisfaction which has yet to be voiced publicly. Those firms which had been brought to account by disciplinary bodies tended to claim that they had learned from the experience. Their claim that they were especially careful when acting in a conflict situation will be explored further in the next chapter, in which I review the procedures adopted by firms when act­ing in the face of conflict.