Professional Conduct Revision Notes

Professional Conduct

Conflict of Interest

1. Principle 4: Must act in the best interests of each client

2. Outcome 3.4

• Must not act if there is an own interest conflict

• Significant risk of an own interest conflict

  • Own interest conflict (Chapter 3) – conflict of interest between you and current clients

3. Outcome 3.5

• Must not act if there is a client conflict OR

• Significant risk of a client conflict

  • Unless exceptions apply

• Client conflict = conflict of interest between two or more current clients

4. Outcome 3.6: Substantially Common Interest Exception

• If the clients have a substantially common interest you may only act if:

  • You have explained the relevant issues and risks to the clients

  • You have a reasonable belief that they understand those issues and risks

  • All clients have given informed consent to you in writing to you acting

  • You are satisfied that it is reasonable for you to act for all the clients and that it is in their best interests

  • You are satisfied that the benefits to the clients of you doing so outweigh the risks

• Substantially Common Interest (glossary):

  • Clear purpose in relation to any matter or particular aspect of it between the clients

  • a strong consensus on how it is to be achieved

  • Client conflict is peripheral to this common purpose

5. Outcome 3.7: Competing for the Same Objective

• If the clients are competing for the same objective, you may only act if:

  • You have explained the relevant issues and risks to the clients

  • You have a reasonable belief that they understand those issues and risks

  • There is no other client conflict in relation to that matter

  • Unless the client specifically agree, no individual acts for, or is responsible for the supervision of work done for, more than one of the clients in the matter (Chinese walls)

  • You are satisfied that it is reasonable for you to act for all the clients and that it is in their best interests

  • You are satisfied that the benefits to the clients of you doing so outweigh the risks

Consider Indicative Behaviours

• IB(3.2)

• IB (3.3)

• IB (3.4)

• IB (3.5)

• IB (3.6) – Competing for same objective

• IB (3.7)

• IB (3.11) – Substantially common interest

• IB (3.12) – Substantially common interest

• IB (3.13)

• IB (3.14)

6.) Consider Confidentiality Issues

• Duty of confidentiality between solicitor and client continues at all times

• Applies to current, former and dead clients

• Generally only situations in which duty may be breached:

  • With client’s permission

  • Where solicitor is permitted by law

Disclosure

• Relates to all knowledge of solicitor which is material to client’s matter

UNLESS

• Duty of disclosure is in conflict with duty of confidentiality (confidentiality trumps)

• Client gives consent to specific informed non-disclosure – IB 4.4

• Serious or mental or physical injury will be caused by disclosure - IB4.4

• Privileged documents have been mistakenly disclosed – IB4.4

• Information is Official Secrets

• Legal restrictions: money laundering/terrorism regs prevent disclosure

Confidentiality v Disclosure – Structure

1.) Who do you owe confidentiality to?

2.) Who do you owe disclosure to?

3.) Confidentiality trumps Disclosure - O4.3

4.) Can work for both clients?

GENERAL RULE (O4.4 and IB 4.5): Do not act for A where A has an interest adverse to B and:

• A is a client/former client for whom you hold confidential information

• Which is material to Jones in his matter

UNLESS all 4 following conditions are met:

1.) Confidential information can be protected by safeguards

NB difficult with small firms or clients are not sophisticated users of legal services

2.) You reasonably believe that A is aware of and understands the relevant issues and gives informed consent

3.) ONE of the following:

a) A gives informed consent to you acting for B and you agree with him the safeguards to put in place; or

b) You put the safeguards in place that comply with common law where the above consent is not given

4.) It is reasonable to act for B in all the circumstances with those safeguards in place.

Client Care

Accepting Instructions

• Cannot discriminate in accepting instructions

• Comply with Code in accepting instructions – O1.3

• Cannot accept instructions if you cannot act in client’s best interests IB1.7

Stopping Acting for Client

• Same principles apply as in accepting instructions

• You can only cease to act with good reason and having given reasonable notice – IB 1.26

• Cease to act if you breach the Code

• You should refuse to act where the client proposes to make you/your family a gift of significant value UNLESS they take independent legal advice IB1.9

• When ceasing to act – explain client’s options IB1.10

First Meeting with Client

You must inform your client in writing about:

• Their right to complain and how to do so (O1.9)

• Their ability to complain to the Legal Ombudsman and how to do so (O1.10)

• Name and status of person dealing with their matter and the name of their supervisor IB1.3

You must inform your client the following about costs:

• Likely overall cost (O1.13)

• Any fee sharing/referral arrangements IB1.4

• Must be kept up-to-date with cost issues throughout proceedings

• Relevant information about acting under a CFA (if applicable) (IB1.16 &1.17) – NB cannot enter into CFA once contentious proceedings have begun.

Miscellaneous Issues

Drafting Documents

• Solicitor must not devise facts which will assist in advancing the lay client’s case – O5.1

• Must not draft a document containing:

  • a contention which he does not consider to be properly arguable

  • any allegation of fraud unless he has clear instructions to make such an allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud

Documents

• If a solicitor comes into possession of a document belonging to another party by some means other than the proper and normal channels, he should:

  • Where appropriate make enquiries of his professional client in order to ascertain the circumstances in which the document was obtained

  • Unless satisfied that...

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