- See e.g. L. Austen et al, “Ethics in Practice—Welcome!” [1998] LE 15 at 19–20; G. Hazard Ethics in the Practice of Law (New Haven, Yale University Press, 1978), p.69; S. Perry “Ethical Issues and Solicitors' Practice” [1998] LE 25 at 26 and the Law Society's Annual Guidance Statistics for 1999.
- Prince Jefri Bolkiah v KPMG (A Firm) [1999] 2 AC 222 (hereafter Bolkiah). Although the defendants in this case were a firm of accountants, they conceded that as they were providing litigation support services they must be treated for the purposes of the case in the same way as solicitors.
- R. Cranston, “Legal Ethics and Professional Responsibility” in Cranston (ed.) Legal Ethics and Professional Responsibility (Oxford, Clarendon Press, 1995) and The Law Society's Guide to the Professional Conduct of Solicitors (London, The Law Society, 1999) p. 313 (hereafter “Law Society's Guide“).
- See however D. Lamb,“Ethical Dilemmas: What Australian Lawyers Say About Them” in S. Parker and C. Sampford (eds), Legal Ethics and Legal Practice Contemporary Issues (Oxford, Clarendon Press, 1995).
- See the draft report of The City of London Law Society's Working Party Review of Conflict Rules, July 2000, discussed further in section 5, below.
- See, e.g., American Bar Association Model Rules of Professional Conduct, Rule 1.9 and the English case of Spector v Ageda (1971) 3 WLR 498.
- ABA Model Rules, Rule 1.8.
- See the introductory note to Chapter 15 of the Law Society's Guide, supra n. 3.
- See, e.g., D. Nicolson & J. Webb, Professional Legal Ethics: Critical Interrogations (Oxford, Oxford University Press, 1999), pp. 104–5, 151.
- See Bolkiah, supra n. 2. In Clark Boyce v Mouat [1994] 1 AC 428, Lord Jauncey said that there was no general rule of English law that a solicitor should never act for both parties in a transaction where their interests conflict. However, in the absence of informed consent, a solicitor cannot act for parties with competing interests and at the same time fulfil his or her duties to both.
- See Bolkiah supra n. 2 at p. 235.
- The duty not to misuse confidential information is a duty without the consent of the client not to make any use of it or to cause any use of it to be made by others other than for the client's benefit—Bolkiah, ibid.
- See Chapter 16 of the Law Society's Guide, supra n. 3. Where it arises, it is unqualified and is a duty to keep the information confidential, not merely to take all reasonable steps to do so. See also Bolkiah, supra n. 2 at p. 235.
- See Law Society's Guide, supra n. 3 para. 16.01 note 3, p. 324.
- See ibid., para. 16.06 note 3, p. 331.
- See generally ibid., p. 331 et seq; also English and American Insurance Company Limited v Herbert Smith [1988] F.S.R. 232 and Ablitt v Mills and Reeve, The Times, 25 October 1995.
- See Bolkiah at p. 234. The former client is entitled to prevent his solicitor from exposing him to any avoidable risk including the risk arising from the acceptance of instructions to act for another client with an adverse interest in a matter to which confidential information is or may be relevant. ibid. at pp. 235–6
- Ibid. at p. 227.
- See Bolkiah supra n. 2 at p. 232 where it is said that the defendant's client made such an acknowledgement.
- See ibid.
- Ibid. at p. 234. See also Clark Boyce v Mouat [1994] 1 AC 428.
- There are also issues as to the extent of the duty of disclosure—see, for example, Clark Boyce v Mouat, ibid.
- See Law Society's Guide, supra n. 3, para. 15.02.
- See Law Society's Guide, supra n. 3, para. 15.03.
- Supra n. 8.
- These are reproduced in the Appendix, below.
- See Rule 6 of the Solicitors' Practice Rules 1990.
- Depending on the response to the second layer of the vignette it was anticipated that it might be unnecessary to progress to the third layer because participants might indicate that they could no longer act for the client on the basis of the facts already known.
- We also discussed two of the vignettes with a distinguished Canadian academic who is head of professional training and development at a “blue ribbon” law firm in Toronto and a third with a New Zealand lawyer who is a partner with a large international law firm in Auckland. In addition, the underlying issues were discussed with two partners from a multinational firm in the City of London.
- The solicitors described a hostile environment where mobile phones or other valuables were liable to be stolen and facilities offered to solicitors were almost non-existent. They were certain, for example, that no power source would be made available for laptops.
- Other than those regulated by Rule 6 of the Solicitors' Practice Rules 1990 which deals with avoiding conflicts of interest in conveyancing, property selling and mortgage-related services.
- The largest number relate to the Solicitors' Accounts Rules.
- This is in contrast to Debra Lamb's experience in Australia where such conflicts are referred to as “troubling”. See n. 4 supra.
- Supra n. 5.
- Ibid. at p. 17.
- The Working Party describes a Category 1 conflict as a situation where the interests of two or more clients directly conflict so that pursuing the best interests of one client would almost certainly involve damaging the interests of the other.
- See Bolkiah, supra n. 2.
Legal Ethics
Volume 3, 2000 - Issue 2