Conflicts, Confidentiality and Disclosure Flashcards
What are the two types of conflicts of interest you will encounter in practice?
- Own interest Conflict
- Conflict of interest
Relating to the same matter or a related matter
What are the differences between an own interest conflict and a conflict of interest
The first is a conflict between the solicitor/firm and the client. The second is a conflict between clients
What is a related matter?
A matter related to the same asset or liability
Will there be a conflict if there is a general business interest of the same type of business between two clients?
No, as long as the issues are different
Can other solicitors act from the same firm where one solicitor is conflicted?
No, conflicts apply to the whole firm
When should a solicitor consider conflicts of interest (i.e conflicts between clients)
At the start of the matter before the retainer is created
You act for two people investing in a business (no conflict). Later on, one of the clients wants to increase their investment for greater control - has a conflict now arisen?
Yes
What should you do if a conflict arises before the retainer?
Decline to act or only act for the client/s who they can best represent
What should you do if a conflict arises after the retainer?
Inform all the clients and consider declining to act for all or some clients
Can a client consent to a conflict of interest?
No
What is a limited retainer?
When there is a conflict but you decide to act only on aspects where there is no conflict and advise the client to take independent advice on the conflicted area
Can a firm decline to act if it thinks it will result in professional embarrassment?
Yes
Give examples of an own interest conflict?
- Financial interest in the client’s business
- The client leaves you property in a will they want you to draft
- Personal relationships
- Commercial Relationship
- Employment claim of former employee
- Solicitors own conduct is in question
Can you act for a client in drafting a will where the client will leave your brother very expensive jewellery?
Yes, if you are happy the client took independent legal advice with regards to the making of the gift
Are there exceptions to own-interest conflicts?
Yes, if you are happy the client would not be undermined by the financial interest
Can you advise a client on a matter against your mother?
No
Can you advise a client on a matter where your commercial interest in a business is adverse to your client’s business
No
Can you act for a client who was an employee of the firm and wants to bring an employment claim against the firm?
No
Can you act for a client where you made a mistake in their matter and the client needs advice on how to rectify the losse arising from that mistake?
No, if one of the options is for the client to bring a claim against you for professional negligence
Are there any exceptions to acting where there is an own-interest conflict?
No, it is an absolute bar
What is a conflict of interest between clients?
When you owe duties to both clients in respect of the same or related matters and those duties conflict
If your advice to one client would be different to your advice to another client involving the same matter, is there a conflict?
Yes
What are the exceptions to the rule that you cannot act where there is a client conflict ?
- Substantially common interest exception
- Competing for the same objective exception
What is the substantially common interest exception?
Clear common purpose and a strong consensus on how it is to be achieved
