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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 o 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 o 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: o You have explained the relevant issues and risks to the clients o You have a reasonable belief that they understand those issues and risks o All clients have given informed consent to you in writing to you acting o You are satisfied that it is reasonable for you to act for all the clients and that it is in their best interests o You are satisfied that the benefits to the clients of you doing so outweigh the risks
* Substantially Common Interest (glossary): o Clear purpose in relation to any matter or particular aspect of it between the clients o a strong consensus on how it is to be achieved o 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: o You have explained the relevant issues and risks to the clients o You have a reasonable belief that they understand those issues and risks o There is no other client conflict in relation to that matter o 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) o You are satisfied that it is reasonable for you to act for all the clients and that it is in their best interests o You are satisfied that the benefits to the clients of you doing so outweigh the risks
Consider Indicative Behaviours
* 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: o With client's permission o 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.
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