Conflicts Flashcards
what are the two types of conflict of interest?
conflict between clients interests and solicitors interest (own interest)
conflict between two or more clients (conflict of interest)
what are the rules of there is a conflict of interest between clients?
must not act if it is in relation to a matter or aspect if there is a conflict of interest or a significant risk of such conflict,
UNLESS: the clients have substantially common interests in relation to the latter, or
the clients are competing for the same objective.
can a conflict of interest arise from a former client and a current client?
no, they must both be current. once the retainer is completed/terminated, the solicitor no longer owes a duty to act in that clients best interests.
there is still the duty of confidentiality however
what counts as significant risk of a conflict of interest?
judged on individual circumstances.
what are exceptions to a conflict of interest existing?
if both clients have substantially common interest
if they are competing for the same objective
what are examples of situations where there may be a conflict of interest ,but the exceptions allow it?
setting up a business ( only if they have already agreed on fundamental matters)
if two companies are bidding to take over a third company.
what are the conditions for the exceptions on conflict of interest?
all clients must have given informed consent, given or evidenced in writing
where appropriate, effective safeguards put in place to protect clients confidentiality information
and if the solicitor is satisfied that it is reasonable to act for all cilents.
what must a solicitor do if an own interest arises?
consider whether to decline to accept the retainer, cease to act, or advise the client to seek independent legal advice on that aspect of the matter.
what are 4 major examples of own interest conflict?
financial interest of yours or someone close to you.
personal or business relationship of yours
role as an employee
own conduct- if wrong advice has been given to the client/wrong action
what must a solicitor do if asked to act for both the seller and buyer of a property?
conflict of interest, should not normally act.
if high value and complex, greater risk.
can a solicitor act for joint buyers?
yes, this is common. the interests are usually the same, so no conflicts
check the situation though.
can a solicitor act for borrower and lender for a property transaction?
conflict may arise if the terms of the mortgage are unfair .
if residential, and on standard terms and conditions, it can be concluded that there is no conflict of interest. substantially common interest
