The Future for Conflicts of Interest

There are numerous pressures to weaken conflict of interest rules. They emanate from self-interested professionals who want more business, from consumer advocates who argue that such rules are anti-competitive and from those seeking a less adversarial, more co-operative legal system.

¹²⁸ ibid, rC.21.4.

¹²⁹ ibid, oC12.

¹³⁰ ibid, rC21.1 and 2.

¹³¹ ibid, rC21.3.

¹³² See ibid, rC21.4 and ch 10: ‘Confidences’.

Accepting that there will be situations of possible conflict when lawyers should be able to act, the question becomes one of who bears the onus of proof. On the basis of In Re A Solicitor, it is the lawyer who must establish that there is no risk. Even so, it is arguable that the rules against acting in conflict of interest situations are not strict enough. Private clients are normally most upset if ‘their’ solicitor acts for an oppo­nent. The solicitor will obviously know them, their character and the way they are likely to act under stress. All of this information could be used against a former client.

A similar case could be made in relation to acting against an organisation that is an existing client or indeed was a former client. A general knowledge of the culture of a company or public authority and of the way they work will often be very useful in conducting litigation or negotiations with it. Information that is often not regarded as confidential can still be useful to an opponent.

There are situation in which lawyers and academics have argued for further relax­ation of conflict rules. In the family context, for example, the rules against acting for both spouses may be seen to be unduly restrictive. Tur argues that ‘some reformula­tion of the conflict-of-interest rules of professional conduct is highly desirable in order to permit family lawyers to act, where appropriate, for and in the best interests of the family rather than solely for one individual member’.¹³³ This would place the lawyer more in the role of a mediator rather than a representative.

Acting for a whole family might be allowed under Rule 3.02(1), but all the par­ties must consent and the consent must be fully informed. Tur’s suggestion involves a change of culture whereby the appointment of a ‘lawyer for the family’, becomes more normal. Such a move would be consistent with the general move away from adversarial assumptions. It would make sense, financially and in the interests of the family, and could therefore be justified ethically. There are risks, however, in denying a representative to individual family members, especially those with the least power.

XII. Conclusion

An intuitive view of conflicts of interest is that a professional representative, having offered a duty of loyalty to one person, cannot later oppose that person on behalf of another. Some have argued that this is too broad and onerous a rule. It denies the pos­sibility that it is in the client’s best interest that a solicitor acts in a conflict of interest situation. It also creates the possibility that rules could be abused, tactically, to deny an opponent their lawyer of choice. Rather than adopt a strict ban on any possible conflict of interest, the English professions have preferred to base obligations on the duty of confidence rather than the duty of loyalty.

¹³³ RH Tur, ‘Family Lawyering in Legal Ethics’ in S Parker and C Sampford (eds), Legal Ethics and Legal Practice: Contemporary Issues (Oxford, Clarendon Press, 1995).

The litigation that has arisen in relation to the joint representation of buyer and seller or mortgagor and mortgagee, suggests a need for caution in further relaxation of conflict of interest rules. Joint representation in such situations allows solicitors to offer an efficient and less costly service in a non-contentious situation. Nevertheless, this relaxation caused numerous problems, prompting calls for tighter regulation. It may be asking too much of anyone that they represent different interests at the same time while being constantly alive to the possibility of a conflict of interest arising.

Sensitivity to potential conflicts of interest is particularly important where the law­yer is working outside the context of a one-to-one lawyer-client relationship. This can occur in representing an institution, or group, or undertaking mediation, conciliation or other non-conventional work. Another factor in favour of reducing the scope of conflict rules lies in the fact that civil procedures are less adversarial. It may be that the rules and principles on conflict of interest could be revisited in order to accom­modate a more co-operative and facilitative ethos. It is therefore desirable to keep conflict rules under review, particularly with regard to practices and developments in other jurisdictions.