Conflicts, Confidentiality, Disclosure Flashcards
What is an “own interest conflict” compared to a “conflict of interest”
Own interest conflict: Conflicts between the solicitor/ firm and the client
Conflict of Interest: Conflict between two or more current clients
What should you do if a conflict arises BEFORE the retainer?
Refuse to act for the party who has not yet signed the retainer
What should you do if a conflict arises AFTER the retainer?
Solicitor should inform all clients.
They may need to withdraw from representing all parties, BUT might be able to keep representing one if their duty of confidentiality is not at risk
What happens if there is a conflict but the client consents?
Solicitor still must not act. Client cannot consent to current conflicts
What is a limited retainer?
When a firm only acts on the aspects of their client’s case where no conflict exists, AND advises the client to take independent advice on the conflicting areas.
What must a solicitor do if there is an own interest conflict?
If there is an own interest conflict, or a significant risk of an own interest conflict, the solicitor must not act.
This is an absolute bar to acting for a client. No exceptions. No client consent. No independent legal advice.
What must a solicitor do if there is a conflict between clients?
If there is a client conflict, or a significant risk of a client conflict, the solicitor must not act UNLESS an exception applies
What are the two exceptions where a solicitor may act despite a conflict between clients?
Substantially common interest
Competing for the same objective
NOTE: If either applies, still need client’s informed, written consent + adequate safeguards + reasonable to act
What is the “Substantially Common Interest” Exception
A solicitor may act for clients with conflicting interests where:
(1) there is a clear common purpose and
(2) a strong consensus on how it is achieved.
What is the “Competing for the Same Objective” Exception
A solicitor may act for clients with conflicting interests if there are:
(1) Two or more clients
(2) competing for the same objective
(3) the is not public
(4) which, if attained by one client, would make that objective unattainable to the others.
E.g., acting for two separate companies that are both trying to acquire a third company
If an exception to a conflict between clients is present, what must the solicitor do?
(1) Get informed, written consent from the client
(2) Adequate safeguards to protect confidential info
(3) Reasonable for solicitor to act (e.g., there are no serious unresolved issues, both clients benefit from the representation etc)
When can you disclose confidential information?
(1) When required/permitted by law
(2) Client consents
(3) Justified breaches (still technically a breach):
- Prevent a crime that will cause serious bodily harm
- Prevent client’s self-harm/suicide
- Protecting a child/vulnerable adult
Disclosure must be BEFORE the event
By whom is the duty of confidentiality owed?
Everyone in the firm (solicitors, support staff, consultants etc.)
How long does the duty of confidentiality last?
Forever, even after end of retainer/death of the client
What is the difference between Legal Professional Privilege and the Duty of Confidentiality?
LPP: Protects confidential communications between solicitors and their clients for the purposes of giving legal advice. Can ONLY be disclosed with permission from the client- cannot be compelled to give in court.
Duty of Confidentiality: ALL confidential information about client affairs. May be disclosed in certain circumstances.
Consequences for breaching duty of confidentiality
Client may sue the solicitor, discipline by the SRA or the SDT
Exceptions to the duty of disclosure
You are not required to disclose information to the client if:
(1) The client gives informed, written consent
(2) Disclosure would cause serious physical or mental injury
(3) Legal restrictions for national security
(4) You obtained information through mistakenly viewing a privileged document
What is the Duty of Disclosure
Anyone advising a client must make that client aware of all information material to that retainer of which that individual is aware.
When can you act for A (potential client) against B (current or former client) for whom you hold confidential information material to the dispute?
(1) If effective measures have been taken so that there is no real risk of disclosure of confidential information
OR
(2) B gives informed, written consent to you acting AND to the measures taken to protect confidential info
