THE FRUSTRATED CLIENT
Where there was a commercial conflict, firms claimed that more often than not the matter was taken no further and the prospective client turned away. Sometimes a conflict check was not even undertaken as the firm simply said that it was not its policy to act against certain bodies, for example, insurance companies or health authorities.[347] This blanket refusal to act against certain bodies can create problems for some would-be clients.
An example drawn from personal experience arose when a group of university lecturers was seeking to claim unfair dismissal against their employer and sought to instruct a large regional firm to handle their claim. They were informed by all major practices in their area that ‘conflicts of interest’ prevented their taking on the case. It appeared to the lecturers concerned (all of whom were qualified solicitors) that there was no legal conflict for the majority of firms but rather that a policy decision had been taken that this was a commercial conflict. In order to obtain the type of representation they required the lecturers were driven to instruct a London practice— an option which was more costly and time-consuming.Most of the firms which admit to adopting a blanket policy of refusing to act against certain institutions are well-known in their field.[348] It may be suggested, however, that to allow solicitors to ‘pick and choose’ the clients for whom they wish to act is ethically dubious as it could result in certain members of society being unable to obtain legal representation. One proposal would be to operate a ‘cab-rank’ rule for solicitors, but, as has been highlighted elsewhere,[349] barristers likewise place commercial considerations before the principle that they should accept every piece of work offered to them. This is despite the so-called cab-rank rule.
Problems can also arise for those clients who spread their legal work amongst different firms. Client A highlighted the difficulty in obtaining specialist legal advice in certain fields:
We pick and choose lawyers for particular transactions to try to ensure that we instruct a specialist each time. We are not loyal to one particular firm because we are looking for the best lawyer in the field. This approach can be problematic in some areas, for example competition law, as it is often difficult to find a firm with sufficient expertise that has not previously worked for one of the other companies involved. As a result, we are often forced to use our fifth or sixth choice of lawyer and we then end up feeling that we are getting second-class advice.