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CONDUCT IN BLP
Multiple individuals approach you and ask you to act for all of them in relation to the formation of their partnership. What should your response be and why?
A trainee is asked by a client to give an undertaking on his behalf. The trainee gives it,
knowing that the firm has a policy that trainees cannot give undertakings. The client was not aware of this policy but did know that they were a trainee.
O(3.4), O(3.5) - generally, a solicitor cannot act if there is an own interest/client conflict, or a significant risk of an own interest/client conflict. Check if exceptions in O(3.6) [the clients have a
"substantially common interest"] or O(3.7) [the clients clients are
"competing for the same objective"] apply. In the case of the formation of a partnership, the clients may well have a "substantially common interest" under
IB(3.3) - declining to act for where you may need to negotiate on matters of substance on the client's behalf
IB(3.5) - declining to act for clients under O(3.6) where the clients cannot be represented evenhandedly or will be prejudiced by lack of separate representation
IB(3.11) - you may not have not achieved these Outcomes if acting for multiple clients under O(3.6)
where the clients' interests in the end result are not the same
IB (3.12) - you may not have achieved these Outcomes if acting for multiple clients in a conflict of interests under O(3.6) where it is unreasonable to act because there is unequal bargaining power between the clients
IB (11.5) - "maintaining an effective system which records when undertakings have been given and when they have been discharged."
O(11.2) - "you perform all undertakings given by you in a reasonable timescale or within a reasonable amount of time."
You will be acting for multiple clients in relation to the same matter - consider what the best interests of each client are and whether those interests are in conflict or there is a significant risk of a conflict arising.
If the partnership agreement is to give the same rights and obligations to all partners,
and their financial circumstances and investment in the business are the same,
then it is possible that there is no current conflict of interests but there remains a significant risk that one might arise as the drafting of the agreement progresses.
Alternatively, if the agreement is to give differing rights and obligations to each partner, then there will be a conflict of interests already in existence.
An undertaking is binding even if it is to do something outside your control. Unless stated to the contrary, The trainee will be expected personally to make the payment. Undertakings can be enforced against your firm by the court.
Therefore, the firm will be expected to implement the undertaking as a matter of conduct.
It is a separate question as to whether the undertaking binds the firm as a matter of agency. There may be a claim against the firm as a matter of agency, but clearly here there was no actual authority. If the person to whom the undertaking was given did not know the trainee to be a partner, it may be difficult to establish apparent authority.
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