THE AVAILABLE OPTIONS

There are a number of different options open to a firm which chooses to act in the face of conflict. Some are well known, others less so.

1. Chinese Walls

The most obvious way to stop information from moving within a firm is to sep­arate the relevant parties and erect physical barriers between them, thereby, it is hoped, preventing staff from having any contact with each other.

I have, to this point, considered the use of Chinese walls only in relation to former clients or on amalgamation of two or more law firms. It is possible, how­ever, that a wall may be erected in other conflict situations. The City Disputes Panel, in its recent review, maintained that

Chinese walls are a tried and tested method of keeping the affairs of a client and a firm, or the client and another client, which might be adverse, separate so that the interests of the client or clients can be safeguarded.^[424]

How then ought a firm to set about constructing a secure wall?

The City Disputes Panel observed that an ‘effective’ wall must ensure that information which is within the knowledge of one part of the firm does not flow into another part of the firm, where that information could otherwise be used to further another client’s interests and may prejudice the interests of the owner of the information. However, there appear to be no set criteria in law determining how a Chinese wall should be established. As has been shown above, the courts and the Law Society have identified various procedures which they see as the minimum conditions that need to be satisfied in respect of any wall.

—walls must be established, not created ad hoc;

—there must be complete physical separation of staff and documentation;

—educational programmes should be provided for staff;

—there need to be strict and carefully-defined procedures for crossing walls; —there should be regular monitoring by compliance officers;

—disciplinary sanctions should be imposed where there is a breach of the wall.

If adhered to, these measures should substantially reduce the risk that informa­tion will pass from one side of the wall to the other. Furthermore, any breaches of the wall can be dealt with swiftly since independent compliance officers should be able to spot any deficiencies in the arrangements. The introduction of on-going training programmes for staff, and the imposition of sanctions if the wall is breached, should help to maintain high standards of integrity on the part of all those involved.

2. Other Possible Conflict Management Strategies

Closely associated with the idea of Chinese walls is a simple understanding not to disclose information to fellow members of a firm.^[426] This is sometimes referred to as a ‘cone of silence’.^{[427] [428] Each solicitor in possession of relevant confidential material promises not to reveal what he knows to anyone else within the firm. The success of this approach does of course depend entirely on the integrity of individual members of a firm.}

Because it may be difficult to isolate just one person within an organisation it may prove simpler for the individual not to come to work for the duration of the case. That person may, therefore, be given a sabbatical, sometimes referred to as ‘gardening leave’.¹¹ An example of this strategy was seen in 1997 when a senior member of one firm was given leave. This was done to prevent the col­lapse of a proposed merger of two law firms because a client of the other firm was unhappy about the knowledge possessed by this partner.

Another possible strategy is ‘storage’. All relevant papers in respect of work previously carried out on a case may be stored away and not made available to the fee-earners working for the present client. Likewise, access to any information contained on a firm’s computer system can be restricted by the use of passwords.

Finally, it is possible, at least in theory, to secure the agreement of clients to allow any confidential information to be revealed to the party with whom the conflict has arisen. In other words it may be accepted that there is not, after all, a conflict, or that the conflict is insignificant, or that the information held in respect of the other party is, relatively speaking, trivial. Of course the feasibility of this approach will very much depend on the type of information held by the firm and, most fundamentally, on the willingness of the clients to co-operate.^[430]