3. Obligations to the Client - Conflicts of Interest and Confidentiality Flashcards
Conflict - Overview
What is the summary overview for client conflicts of interest?
The Law Society of Jersey Code of Conduct 2017 Ed
_(_A) Duty not to act - R.6.1
01 Duty not act: lawyer/firm must not act for client if:
a. conflict of interest
b. significant risk of conflict of interest
02 Exceptions: circumstances in R.6.3 (non-contentious matters)
(B)Acting in same or related matter(s) - R.6.2
01 not act: for 2 or more clients in same or related matter if:
- conflict of interest
- significant risk of conflict of interest
02 duty to act in best interests owed to each client by lawyer/firm
03 related matter: if involves same
- asset
- liability
- transaction
(C) Exceptions to duty not to act - R.6.3
01 Conflict (parties) - non-contentious with informed consent: act for more than 1 client whose interests conflict in same matter if:
- non-contentious matter
- all clients’ informed written consent
02 Material conflict (1 non-party) - non-contentious matter with informed consent: act for more than 1 client whose interests materially conflict (but 1 is not party) in matter if:
- non-contentious matter
- all clients’ informed written consent
03 Conflict - competing same asset/objective: only act if:
- all clients’ informed written consent
- knowledge acting for other competing clients: more than 1 (or more)
- no other client conflict in matter
- acts/supervising work only for 1 client in matter (unless otherwise agreed)
- satisfied reasonable to act for those clients
- benefits outweigh risks to those clients
(D) Same transaction - requirement to obtain additional informed written consent - R.6.4
01 1 or more clients in same transaction: if 1 or more private individual(s) party to transaction before acting, even with partes’ written informed consent
02 write to clients: in clear terms
(a) cease act for 1 or all clients in transaction
1. if non-managable conflict of interest arises; or
2. 1 client concerned not acting in best interests
(b) set out policy for billed and unbilled fees in that situation
(c) written confirmation clients understand: ask to be given
(E) Conflict when already acting - R.6.5
01 only continue to act for 1 client (or group of clients if no conflict) if:
(a) act for more than 1 client in matter
(b) during conduct of matter
(c) conflict arises between 2 or more clients
02 duty of confidentiality to other client(s) not at risk
03 unless written informed consent (R.6.3)
(F) Own interest conflicts - R.6.6:
01 not act for client if:
(a) conflict of interest or significant risk of conflict
(b) lawyer/firm’s own interests and duty act in client’s best interests
02 not act if own interests conflict - The Bâtonnier v Olsen and Olsens (2003) - conflict between lawyer’s and firms’ own interests and interests of client company - advice not removed as NED without cause
03 Guidance G.6.6
(a) Conflict or consent: when considering if conflict of interest or seek consent from all clients under R.6.3 (exceptions to duty not to act)
(b) Bests interests owed to each client: take into account duty to act in best interests of each individual client; and
(c) Continuing duty post-termination: extent duty continues for former client following termination of retainer
Note: look at rule on client confidentiality
(G) Conflict between duty of confidentiality to former clients and to new clients - R.6.7
01 act for adversary or counterparty (A) of client/former client (B) if:
(a) no materially relevant confidential information of B to dispute/matter or
(b) if such confidential information:
1. informed written consent: obtained from client A and (if possible) B, and
2. effective safeguards: information barriers put in place to effectively protect it; and
3. reasonable to act for A in all circumstances with safeguards in place
Note: size of Jersey bar compared to UK
02 No information barriers, justice outweighs litigants choice - Les Pas Holdings v Receiver General 1995 RC
Held:
(a) principle of justice seen to be done outweighs litigant’s right to choose his own advocate despite relatively small size of the Jersey Bar
(b) risk potentially damaging information linked
(i) not necessarily to present legal/factual argument
(ii) but to Pl’s company’s commercial and financial business affairs
(c) rejected information barrier in this case despite undertakings to erect ‘Chinese wall’
(d) rejected Guernsey’s approach: limited lawyers practising in Guernsey
(e) Not continue to act for States__
Facts:
- advocate acting for States
- predecessor form of currect firm previously acted for Pl
- advocates firm proposed chinese walls
03 Consider Bar’s small size and nature of different firms - Abacus (C.I.) Limited v Bisson 2007 RC
Held:
(a) Les Pas not followed
(b) Guernsey cases reviewed
(c) Consideration:
(i) relevant material confidential information?
(ii) information barriers provide protection?
(ii) take account, in appropriate circumstances:
1. small size of Jersey Bar; and
2. nature of different firms in profession
3. effect of order
(d) fundamental importance - not give perception difficult/impossible to find appropriate calibre/stature lawyers to act against large financial institutions in Jersey
e. g.
1. Crt restrict acting if:
i. possession of lot of highly relevant confidential information; and
ii. information barrier will not protect
iii. small size of Bar makes no difference
2. Crt may not restrict acting if:
i. confidential information relevant borderline; or
ii. information barrier may be effective
iii. take into account consequences of order made - difficult to instruct decent firm
i. e. institution may instruct number of larger firms on different matters
(e) Application allowed and Appleby should cease to act - real risk - materially relevant confidential information
Facts:
- Gamlestaden (G) large action against Baltic and its directors (who were directors of Pl)
- Pl not a D in that action, but indemnified its director
- Pl sought removal of Appleby from acting for G against director of Pl in that action on grounds in possession of materially relevant confidential information
- G would be able to find alternative representation
04 Limited firms and time and costs - pragmatic approach - Takilla Limited v Olsen, Backhurst & Dorey and Jenners 2004 RC
Held:
(a) rejected both applications
(b) relevant considerations: whilst independence of lawyers affected in relation to cross-examinations:
1. Limited choice of firms: whilst no conflict on accepting instructions, potential conflicts often arise after detailed inquiry, but firm choice in Jersey relatively restricted
2. Time
1. move swiftly to trial i.e. serious delays
2. time and cost changing advocates; and
outweighed risk
Facts:
(a) Pl’s (initially represented by Jenners) action for professional negligence against OBD acting for Pl in unsuccessful claim
(b) Pl instructed new lawyers when Jenners joined as co-D, who instructed Mourant
(c) Partner (no connection with OBD) at Carey Olsen acted for OBD (merged with CO)
(d) lawyer acting for Jenners was good friend of a D OBD partner
(e) Jenners wanted CO removed (cross-exam D ODB partners) and Pl’s wanted Mourant removed (cross-exam that OBD partner and Jenners previously acted)
(f) trial seriously delayed
(H) Change of lawyer - Client relations - Rule 1
01 No acceptance of instructions from new client - Rule 1.9: in matter where:
(a) Another firm acted in matter: become aware another firm previously acted for client on matter until:
1. written enqury made to other firm/lawyer
2. other firm/lawyer confirms:
i. no objection to accepting instructions, or
ii. reasonable time elapsed since enquiry
(b) Unless not materially adverse: to person’s interests
(c) Adjudicated if objection: received cannot be resolved amicably:
1. matter referred to President/CEO of Law Society
2. who appoints adjudicator as expert and not arbitrator
3. decision is final
02 obligations to the Court: lawyer’s lien over client papers and Rule 1.9 considered in:
Cunningham v Sinel 2011
(a) D acted for Pl in complex trust proceedings
(b) D claimed £154,000 fees owed and ceased to act 3 weeks before main proceedings
(c) Pl had paid substantial sums and wanted to review fees as were 3 times estimates
(d) C applied for release all files and D refused, unless security for unpaid fees and asserting Rule 9(1)(a)
Held:
(a) ordered D to release files:
(b) Crt had to be able to give justice to litigants coming before it
(c) lawyer as officer of crt owes duty to assist in delivering justice and necessary to proceed with main proceedings efficiently and expeditiously
(d) dispute between client/lawyer subordinate to main proceedings
(e) Crt’s inherent jurisdiction over officers and discretion to order:
1. deliver files to new lawyer (or party)
2. files retained pending payment unpaid sums, or
3. provision of security
(f) Dependant on facts of case, but relevant factors (non-exhaustive):
1. lawyer still acting or discharged own or by client
2. nature of retainer for matter before court (non-contentious or contentious)
3. lawyer acted reasonably/properly in client relationship
4. money in fact owed and proportionate to action
5. balance of hardship between lawyer and client
(I) Public office or appointment leading to conflict - R.6.8
Decline to act if member or employee or relative hold public office/appointment:
(a) conflict of interests (or significant risk) arises, or
(b) client’s advantage: public might reasonably conclude office used to client’s advantage, or
(c) no proper/impartial advice: ability to advise client properly and impartially inhibited
(J) Accepting gifts - R.6.9
01 Not accept documented gift:
(a) documented gift is:
1. contract with client: entered/prepared or instruct partner/employee to enter/prepare
2. confers gratuitous benefit
3. monetary or non-monetary
4. on member, close relative or partner/employee
(b) insignificant to client weatlh: small value/close relative will exceptions:
1 benefit/value conferred not exceeding lower of:
a. £500 or
b. 1.5% of client’s current estimated net estate
2. will for close relative and bequest/legacy to:
1. T’s spouse/civil partner/cohabitant
2. if T has issue at will’s execution:
a. issue of T and recipient or
b. if T’s other issue, appropriate provision made
3. person related to T: not to significant degree, disproportionately large compared legacy to:
a. other same degree relations; or
b. other same degree relations on intestacy (person representative of/represented by)
02 Not accept undocumented gift: unless:
(a) insignificant to client weatlh: small value not exceediing lower of:
1. £2 50 or
2. 1.5% of client’s current estimated net estate
(b) inter vivos if from natural person
03 Anti-bribery and corruption laws apply: firm must keep register of gifts
04 professional fees excluded: if contract of engagement to provide legal services
(K) Bail - R.6.10 - not provide bail or surety for client without consent of Law Soc Committee
(L) D pleading not guilty
01 Facts consistent with plea:
(a) D. own decision:
1. made freely
2. exclusively matter for client to give instructions on
(b) lawyer advises, not own opinion: if account consistent with facts:
1. advise to plead not guilty as matter of fact and law,
2. advise client as to possible outcomes conviction highly likely or inevitable
3. set aside and not act on own opinion as to client’s best interests and whether guilty or innocence
02 Facts inconsisent with not guilty plea: D admits guilty, but pleads not guilty:
(a) duty not to mislead crt - R.3.4: potential conflict cannot:
1. knowingly or recklessly mislead (or attempt or permit Crt to be) - R.3.4
2. call witness giving evidence knowing false (untrue/misleading), unless makes clear true position to crt - R.3.4(d)
(b) duty not to abuse role as advocate - R.3.5: D states guilty, but wants to contest charge:
1. can continue to act for client
2. limited representation at trial: limited in what you can do - tactical disadvantage:
i. no evidence to show client’s innocence - R.3.5
ii. no argument someone else responsible for crime - R.3.5
3. not mislead crt - G.3.3: if, after ‘not guilty’ pleas, lawyer:
i. test reliability of prosecution witnesses’ evidence in cross-examination
ii. address jury that prosecution not succeeded proving client’s guilt:
i. e. closing submission speech: can say:
a. burden of proof not discharged by prosecution
b. raise ‘technical objections’:
- evidence inadmissible
- witness not competent
- no case to answer
iii. cannot set up positive case inconsistent with confession by:
- showing client did not commit crime: by suggesting to prosecution witness, calling witness, or submitting to jury
- suggesting someone else did crime
- putting forward alibi
4. duty to explain position plainly to client - G.3.3: not to mislead crt and not to abuse role as advocate:
(a) withdraw from case if client refuses to accept
(b) client confidentiality: no obligation to inform new lawyer of matters between you and client
(c) if risk crt will be misled, ask client permission to disclose confidential information to crt - no choice but to withdraw if client refuses G.3.3
Conflict - Duty not to act
When must a lawyer or firm not act for a client?
R.6 Conflicts of interest
R.6.1 Duty not to act
(1) Duty not act: lawyer/firm must not act for client if:
a. conflict
b. significant risk of conflict
(2) Exceptions: circumstances in R.6.3 (non-contentious matters)
Full text:
The Law Society of Jersey Code of Conduct
R.6 Conflicts of interest
R.6.2 Acting in the same or related matter(s)
There is, for example, a conflict of interests if a member or their firm owes separate duties to act in the best interests of two or more clients in relation to the same or related matters, and those duties conflict, or there is a significant risk that those duties may conflict. A related matter will always include any other matter which involves the same asset or liability or transaction.
Conflict - Related matters
What must a lawyer or firm do if there is a conflict between the duties owed to 2 or more clients in a related matter?
R.6 Conflicts of interest
R.6.2 Acting in same or related matter(s)
(a) not act: for 2 or more clients in same or related matter if:
1. conflict of interest
2. significant risk of conflict of interest
duty to act in best interests owed to each client by lawyer/firm
(b) related matter: if involves same
1. asset
2. liability
3. transaction
Full text:
The Law Society of Jersey Code of Conduct
R.6 Conflicts of interest
R.6.2 Acting in the same or related matter(s)
There is, for example, conflict of interests if a member or their firm owes separate duties to act in the best interests of two or more clients in relation to the same or related matters, and those duties conflict, or there is a significant risk that those duties may conflict. A related matter will always include any other matter which involves the same asset or liability or transaction.
Conflict - Exceptions
What are the exceptions to the duty not to act for a client?
R.6 Conflicts of interest
R.6.3 Exceptions to duty not to act
(a) Conflict (parties) - non-contentious with informed consent: member/firm act for more than 1 client whose interests conflict in same matter if:
1. non-contentious matter
2. all clients’ informed written consent
(b) Material conflict (1 non-party) - non-contentious matter with informed consent: member/firm act for more than 1 client whose interests materially conflict (but 1 is not party) in matter if:
1. non-contentious matter
2. all clients’ informed written consent
(c) Conflict - competing same asset/objective: member/firm only act if:
1. all clients’ informed written consent
2. knowledge acting for other competing clients: more than 1 (or more)
3. no other client conflict in matter
4. acts/__supervising work only for 1 client in matter (unless otherwise agreed)
5. satisfied reasonable to act for those clients
6. benefits outweigh risks to those clients
Full text:
The Law Society of Jersey Code of Conduct
R.6 Conflicts of interest
R.6.3 Exceptions to duty not to act
A member or their firm may act, in non-contentious matters, for more than one client whose interests conflict in the matter only with the informed written consent of all clients.
Similarly, a member or their firm may act, in such a matter, for a client whose interests materially conflict with those of another client (but the other client is not a party to the matter) with the informed written consent of both clients.
Where there is a client conflict and the clients are competing for the same asset or objective, a member of their firm may only act if:
a) the clients have provided their informed written consent, confirming that they want the member or their firm to act, in the knowledge that they act, or may act, for more than one or more other clients who are competing for the same asset or objective;
b) there is no other client conflict in relation to that matter.
c) unless the clients specifically agree, no individual acts for, or is responsible for the supervision of work done for, more than one of the clients in that matter; and
d) the member is satisfied that it is reasonable for them to act for all of the clients and that the benefits to the clients of so acting outweigh the risks.
Conflict - Additional consent
In what circumstances must a lawyer or firm request additional consent from clients if there is a conflict of interest arising in a transaction?
R.6 Conflicts of interest
R.6.4 Requirement to obtain additional informed written consent
(a) If 1 or more private individual(s) party to transaction
(b) before acting in transaction evenwith partes’ written informed consent
(c) write to clients
1. in clear terms
2. member/firm must cease act for 1 for or all clients in transaction
i. . if non-managable conflict of interest arises; or
ii. 1 client concerned not acting in best interests
3. set out policy for billed and unbilled fees in that situation
4. ask written confirmation clients understand to be given
Full text:
The Law Society of Jersey Code of Conduct
R.6 Conflicts of interest
R.6.4 Requirement to obtain additional informed written consent
Where one or more parties to a transaction is a private individual, prior to acting in the circumstances outlined in R.6.3, a member or firm must write to the clients, in terms that make it clear, and the clients must confirm in writing that they have understood that, in the event of an issue of a conflict of interest arising that cannot be managed by the member or firm, or where one of the clients is concerned that the member or firm is not acting in their best interests, then the member or firm will be obliged to cease acting for one or all of the clients in relation to the transaction and to set out the member or firm’s policy in those circumstances in relation to fees already billed and work as yet unbilled.
Conflict - During matter conduct
What must a lawyer or firm do if a conflict arises during conduct of a matter where acting for 1 or more clients?
R.6 Conflicts of interest
R.6.5 Conflict when already acting
(a) except with wirtten informed consent (R.6.3)
(b) act for more than 1 client in matter
(c) during conduct of matter
(d) conflict arises between 2 or more clients
(e) member/firm only continue to act for 1 client (or group of clients if no conflict), and
(f) duty of confidentiality to other client(s) not at risk
Full text:
The Law Society of Jersey Code of Conduct
R.6 Conflicts of interest
R.6.5 Conflict when already acting
Except in the limited circumstances dealt with in R.6.3, if a member or their firm act for more than one client in a matter and, during the course of the conduct of that matter, a conflict arises between the interests of two or more of those clients, a member or their firm may only continue to act for one of the clients (or a group of clients between whom there is no such conflict), and provided that the duty of confidentiality to the other client(s) is not put at risk.
Conflict - Own interests - What must a lawyer or firm do if there is a conflict between own interests and those of the client?
R.6 Conflicts of interest
R.6.6 Own interest conflicts
Not act: for client if:
a. conflict
b. significant risk of conflict
between lawyer/firm’s own interests and client
Bâtonnier v Olsen and Olsens (2003) - clear conflict between interests of lawyer personally and Olsens as firm and interests of company - advice letter stating Olsen not removed as NED on client company without cause
Full text:
The Law Society of Jersey Code of Conduct
R.6 Conflicts of interest
R.6.6 Own interest conflicts
A member or their firm must not act where the member’s or firm’s own interests conflict with those of the client or there is a significant risk of a conflict.
Conflict - Numerous Clients -What guidance is given when considering the bests interests duty owed to more than one client when considering a conflict?
R.6 Conflicts of interest
Guidance G.6.6
(A) Conflict or consent: when considering if conflict of interest or seek consent from all clients under R.6.3 (exceptions to duty not to act)
(B) Bests interests owed to each client: take into account duty to act in best interests of each individual client; and
(C) Continuing duty post-termination: extent duty continues for former client following termination of retainer
Note: look at rule on client confidentiality
Full text:
The Law Society of Jersey Code of Conduct
Guidance to Rule 6 (Conflict of Interest)
G.6.6 Conflicts of interest
In considering whether there is a conflict of interest or whether it is appropriate to seek consent to act from all clients under R.6.3, a member must take into account the obligation to act in the best interests of each client, the duty owed to each individual client and the extent to which such duty continues in respect of a former client following termination of the retainer.
Conflict - Confidentiality - Can a lawyer or firm act for a adversary or counterparty in an action or transaction?
R.6 Conflicts of interest
R.6.7 Apparent conflict between duty of confidentiality to former clients and duty to new clients
(1) Act for adversary or counterparty (A) of client/former client (B) provided:
(a) no materially relevant confidential information of B to dispute/matter or
(b) if such confidential information:
i. informed written consent: obtained from client A and (if possible) B, and
ii. effective safeguards: information barriers put in place to effectively protect it; and
iii. reasonable to act for A in all circumstances with safeguards in place
Note: size of Jersey bar compared to UK
Full text:
The Law Society of Jersey Code of Conduct
Rule 6 (Conflict of Interest)
R.6.7 Apparent conflict between duty of confidentiality to former clients and duty to new clients
A member or their firm may act for the adversary or counterparty (client A) of a client (including a former client, client B) provided that such member or firm is not privy to confidential information in respect of client B that is materially relevant to such dispute or matter, or can protect such confidential information effectively by the use of safeguards and, in the latter case, informed written consent has been obtained from client A and where possible client B, and, in any event, effective safeguards including information barriers, are put in place and it is reasonable in all the circumstances for the member or the firm to act for client A with such safeguards in place.
Conflict - Information Barriers - Can a lawyer or firm act for a adversary or counterparty in an action or transaction?
01 No information barriers, justice outweighs litigants choice
Les Pas Holdings v Receiver General 1995 RC
Facts:
(a) advocate acting for States
(b) predecessor form of currect firm previously acted for Pl
(c) advocates firm proposed chinese walls
Held:
(a) Not continue to act for States
(b) No information barriers: decision despite undertakings to erect ‘Chinese wall’
(c) Rejected Guernsey’s approach: limited lawyers practising in Guernsey
(d) Principle of justice seen to be done outweighs litigant’s right to choose his own advocate notwithstanding relatively small size of the Jersey Bar
(e) risk advocate receives potentially damaging information: linked
(i) not necessarily to present legal/factual argument
(ii) but to Pl’s company’s general commercial and financial business affairs
02 Consider Bar’s small size and nature of different firms
Abacus (C.I.) Limited v Bisson 2007 RC
(a) Gamlestaden (G) large action against Baltic and its directors (who were directors of Pl)
(b) Pl not a D in that action, but indemnified its director
(c) Pl sought removal of Appleby from acting for G against director of Pl in that action on grounds in possession of materially relevant confidential information
(d) G would be able to find alternative representation
Held:
(a) Application allowed and Appleby should cease to act - real risk - materially relevant confidential information
(b) Les Pas not followed
(c) Guernsey cases reviewed
(d) Consideration:
(i) relevant material confidential information?
(ii) information barriers provide protection?
(ii) take account, in appropriate circumstances:
1. small size of Jersey Bar; and
2. nature of different firms in profession
3. effect of order
(d) fundamental importance - not give perception difficult/impossible to find appropriate calibre/stature lawyers to act against large financial institutions in Jersey
e. g.
1. Crt restrict acting if:
i. possession of lot of highly relevant confidential information; and
ii. information barrier will not protect
iii. small size of Bar makes no difference
2. Crt may not restrict acting if:
i. confidential information relevant borderline; or
ii. information barrier may be effective
iii. take into account consequences of order made - difficult to instruct decent firm
i. e. institution may instruct number of larger firms on different matters
03 Limited firms and time and costs - pragmatic approach
Takilla Limited v Olsen, Backhurst & Dorey and Jenners 2004 RC
(a) Pl’s (initially represented by Jenners) action for professional negligence against OBD acting for Pl in unsuccessful claim
(b) Pl instructed new lawyers when Jenners joined as co-D, who instructed Mourant
(c) Partner (no connection with OBD) at Carey Olsen acted for OBD (merged with CO)
(d) lawyer acting for Jenners was good friend of a D OBD partner
(e) Jenners wanted CO removed (cross-exam D ODB partners) and Pl’s wanted Mourant removed (cross-exam that OBD partner and Jenners previously acted)
(f) trial seriously delayed
Held:
(a) rejected both applications
(b) relevant considerations: whilst independence of lawyers affected in relation to cross-examinations:
1. Limited choice of firms: whilst no conflict on accepting instructions, potential conflicts often arise after detailed inquiry, but firm choice in Jersey relatively restricted
2. Time
- move swiftly to trial i.e. serious delays
- time and cost changing advocates; and
outweighed risk
Conflict - Change Lawyer - Can you act for a client when you know that the client is represented by another lawyer and does the previous lawyer have a lien over client papers?
R.1 Client relations
R.1.9 Change of lawyer
01 No instructions from new client: not accept instructions from new client in matter where:
(a) Another firm acted in matter: become aware another firm previously acted for client on matter until:
1. written enqury made to other firm/lawyer
2. other firm/lawyer confirms:
i. no objection to accepting instructions, or
ii. reasonable time elapsed since enquiry
(b) Unless not materially adverse: to person’s interests
(c) Adjudicated if objection: received cannot be resolved amicably:
1. matter referred to President/CEO of Law Society
2. who appoints adjudicator as expert and not arbitrator
3. decision is final
02 obligations to the Court: lawyer’s lien over client papers and Rule 1.9 considered in:
Cunningham v Sinel 2011
(a) D acted for Pl in complex trust proceedings
(b) D claimed £154,000 fees owed and ceased to act 3 weeks before main proceedings
(c) Pl had paid substantial sums and wanted to review fees as were 3 times estimates
(d) C applied for release all files and D refused, unless security for unpaid fees and asserting Rule 9(1)(a)
Held:
(a) ordered D to release files:
(b) Crt had to be able to give justice to litigants coming before it
(c) lawyer as officer of crt owes duty to assist in delivering justice and necessary to proceed with main proceedings efficiently and expeditiously
(d) dispute between client/lawyer subordinate to main proceedings
(e) Crt’s inherent jurisdiction over officers and discretion to order:
1. deliver files to new lawyer (or party)
2. files retained pending payment unpaid sums, or
3. provision of security
(f) Dependant on facts of case, but relevant factors (non-exhaustive):
1. lawyer still acting or discharged own or by client
2. nature of retainer for matter before court (non-contentious or contentious)
3. lawyer acted reasonably/properly in client relationship
4. money in fact owed and proportiona_te_ to action
5. balance of hardship between lawyer and client
Full text:
Law Society Jersey Code of Conduct 2017 ED
Rule 1 Client relations
R.1.9 Changing lawyers
Except where not to do so would be materially adverse to such person’s interests, a member shall not accept instructions from a new client in relation to a matter when the member is or becomes aware that another member has previously acted for the client in question on that matter, until that member has received confirmation from the other member, in response to a written enquiry to that member, that there is no objection to accepting such instructions or a reasonable time has elapsed since such enquiry. If an objection is received which cannot be resolved amicably, the matter shall be referred to the President or Chief Executive Officer of the Law Society, either of whom will appoint an adjudicator who shall act as an expert and not an arbitrator, and whose decision shall be final.
Conflict - Public Office
What must a lawyer or firm do if a member, employee or relattive holds a public office or appointment?
R.6 Conflicts of interest
R.6.8 Public office or appointment leading to conflict
Decline to act if member or employee or relative hold public office/appointment:
(a) conflict of interests (or significant risk) arises, or
(b) client’s advantage: public might reasonably conclude office used to client’s advantage, or
(c) no proper/impartial advice: ability to advise client properly and impartially inhibited
Full text:
The Law Society of Jersey Code of Conduct
Rule 6 (Conflict of Interest)
R.6.8 Public office or appointment leading to conflict
A member must decline to act where the member or his or her employee or a relative of the member or employee holds some public office or appointment as a result of which a conflict of interests, or a significant risk of a conflict, arises or the public might reasonably conclude that the member or their firm had been able to make use of the office or appointment for the advantage of the client; or the ability of the member or their firm to advise the client properly and impartially is inhibited.
Conflict - Gifts
What must a lawyer or firm do before receiving or accepting any gifts?
R.6 Conflicts of interest
R.6.9 Accepting gifts
(1) Not accept documented gift:
(a) documented gift is:
1. contract with client: entered/prepared or instruct partner/employee to enter/prepare
2. confers gratuitous benefit
3. monetary or non-monetary
4. on member, close relative or partner/employee
(b) small value/close relative will exceptions:
1 benefit/value conferred not exceeding lower of:
a. £500 or
b. 1.5% of client’s current estimated net estate
2. will for close relative and bequest/legacy to:
1. T’s spouse/civil partner/cohabitant
2. if T has issue at will’s execution:
a. issue of T and recipient or
b. if T’s other issue, appropriate provision made
3. person related to T: not to significant degree, disproportionately large compared legacy to:
a. other same degree relations; or
b. other same degree relations on intestacy (person representative of/represented by)
(2) Not accept undocumented gift: unless:
(a) small value not exceediing lower of:
1. £250 or
2. 1.5% of client’s current estimated net estate
(b) inter vivos if from natural person
(3) Anti-bribery and corruption laws apply: firm must keep register of gifts
(4) professional fees excluded: if contract of engagement to provide legal services
Full text:
The Law Society of Jersey Code of Conduct
Rule 6 (Conflict of Interest)
R.6.9 Accepting gifts
A member must not enter into a contract with a client, or prepare a document, or give instructions to a partner or employee (including a fellow employee) of that member’s firm to enter into a contract with a client, or prepare a document, by which the client confers a gratuitous benefit, whether monetary or non-monetary, on that member, a close relative or a partner or employee of that member’s firm or the member’s employer unless:
a) the benefit or the value of the benefit so conferred is no more than the lesser of £500 or (where applicable) one half of one per cent of the client’s current estimated net estate; or
b) the document is a will prepared on behalf of a close relative, where the following circumstances apply:
i) the bequest or legacy is to the spouse, civil partner or cohabitant of the testator provided that, if the testator has issue at the date of execution of the will, either:
those issue are all the issue of both the testator and the recipient of the bequest or legacy, or, if the testator has other issue, appropriate provision is also made for those other issue; or ii) the bequest or legacy is to a person related to the testator and is not to any significant degree disproportionately large as compared to that of:
(1) any other person in the same degree of relationship to the testator or
(2) any person, who under the law relating to intestacy is, or could be, a representative of, or represented by, any other person in the same degree of relationship to the testator.
Where a potential gift is to be undocumented, a member may not accept it unless it or its value does not exceed the lesser of £250 or (where applicable) one half of one per cent of the client’s current estimated net estate. An undocumented gift from a natural person can only be received inter vivos.
This Rule applies alongside, and is without prejudice to, applicable legislation on bribery and corruption, and the requirement on a firm to keep a register of gifts.
The payment of fees pursuant to a contract of engagement to provide legal services is excluded from this provision.
Conflict - Bail
Can a lawyer or firm provide bail or surety for a client?
R.6 Conflicts of interest
R.6.10 Bail
(a) Not provide bail or surety for client
(b) without consent of Law Soc Committee
Full text:
The Law Society of Jersey Code of Conduct
Rule 6 (Conflict of Interest)
R.6.9 Bail
A member must not stand bail or provide a surety for a client without obtaining the prior consent of the Committee of the Law Society.
