SUMMARY

Seven possible ways forward have been identified above, namely:

—enforce the existing rules;

—devise a more detailed set of rules;

—enforce a more narrowly-defined set of rules;

—draft an ‘aspirational’ regulatory framework;

—allow clients to determine what standard of conduct is appropriate from solicitors;

—permit solicitors to decide when it is appropriate to act;

—rely upon the courts.

Individually none of these provides a satisfactory method for regulating solici­tors’ conduct in conflict situations. It will almost certainly be necessary, there­fore, to combine a number of different elements. The existing regime already incorporates three of the above, namely: regulatory rules; client autonomy; and court intervention. It could be said to offer a compromise between three com­peting considerations: solicitors’ commercial interests; client demands; and the desire of the courts and Law Society to maintain public confidence in the pro­fession as a whole. The present arrangements have evolved over a period of time. Is this ‘compromise’ the best we can do as a means of reconciling incom­patible aspirations? Does anything need to be done, therefore, about the exist­ing state of affairs?

There appear to be three main difficulties with the present situation. First, because the Law Society’s rules governing conflicts of interest are flouted in a significant proportion of cases, there is a risk that clients’ reasonable expecta­tion of absolute trust in their relationship with their legal adviser is not being met. This could have one of two possible consequences: either the client’s eco­nomic interests could be damaged through inappropriate disclosure of informa­tion, or [he] may be denied the level of service (including disclosure of all relevant information held by the firm) which he has a right to expect. Secondly, there is a concern that those firms which do adhere strictly to the current regu­latory rules may be commercially disadvantaged as a consequence.

On the other hand, the evidence of my interviews with the large City firms could be taken as an indication that the changed commercial environment has been taken into account whilst, at the same time, providing some check upon solicitors’ untrammelled pursuit of their own commercial interests. That, how­ever, is a judgement which cannot be arrived at solely on the basis of my inter­views with practitioners. It could be that the solicitors whom I interviewed underestimated the threat to their clients’ interests that was represented by their willingness to ‘manage’ simultaneous and successive representation conflicts. It may be that the less economically powerful client is more vulnerable than these solicitors acknowledge. At the same time we have to take seriously the claims of those solicitors who argued that they were bending the rules at the behest of a sophisticated commercial clientele who understood and accepted the risks involved. If one were to accept these solicitors’ argument that they were serving their clients’ interests (as well as their own), it would seem that a reasonable way forward would be to permit continued evolution in respect of each of the three components of the present system. That, indeed, is the conclusion to which I am drawn.

1. Regulatory Rules

The existing rules could be made clearer to draw a distinction between former client conflicts (successive representation) and conflicts between existing clients (simultaneous representation) in order to reflect the position reached by the courts and by solicitors in practice. In other words, provided that consent were obtained from clients, there would be nothing improper in a firm undertaking work in a simultaneous representation conflict.

2. Client Autonomy

Under the present regime clients’ wishes are paramount in simultaneous repre­sentation conflicts. Firms maintain that they act in conflict situations only where consent is obtained from clients or, where it is not practical to obtain consent, where clients ought to be aware when instructing the firm that a conflict might arise. Solicitors are already concerned not to do anything to damage their rela­tionships with clients. It seems right that in simultaneous representation con­flicts the client’s voice should be the key factor in determining what is acceptable.

3. Court Intervention

In successive representation conflicts it is reasonable that clients should be able to have their interests protected by the courts. In these circumstances solicitors are already having to exercise caution because they face the possibility that the former client will initiate proceedings to prevent them from acting.

In this context the courts are attempting to strike a balance between the inter­ests of two sets of clients. They are also having to take account of lawyers’ need to retain freedom to act for whomsoever they wish, and to move between firms—both of which are prominent features of the present environment. At the moment the standard expected of solicitors in safeguarding the confidentiality of former clients is high. Only when a firm can establish that all risk of disclo­sure has been eliminated may it act against a former client. The courts in this respect clearly favour traditional professional values over commercial consider­ations. It seems plausible to suppose that the law will continue to evolve to maintain a balance between these competing considerations.

If the number of successive representation conflicts were to increase, perhaps as a result of an increased tendency for large commercial clients to spread their work around, the courts would doubtless have an opportunity to reconsider the situation. They may in future come to the view that ad-hoc Chinese walls and other devices are an essential feature of modern legal practice in the commercial sector. That is the view to which I too am drawn on the basis of these investi­gations.