Serving Two Masters: Conflicts of Interest in the Modern Law Firm

by Janine E. Griffiths-Baker

Overview

It is a sine qua non of legal practice that lawyers should not allow themselves to act for two clients whose interests may,potentially, conflict. However, this principle is being placed under increasing pressure, the main reasons for this being increased demand for specialist legal services, the globalisation of commerce, a dramatic growth in the size of leading law firms, and significantly greater mobility within the legal profession.

As a result, there is a growing trend, especially within the commercial legal environment, for solicitors to face conflicts of interest which have no easy solution. Increasingly, conflicts are being 'managed', rather than avoided altogether. This is a field within which the Law Society's own rules are flouted on a daily basis, and in which these rules appear increasingly at odds with the common law.

Based on extensive interviews with lawyers and their clients, this book provides the first thorough consideration of how conflicts of interest are handled within law firms. It will be essential reading to all those who have an interest in professional legal ethics, including law students, legal scholars, practitioners, and regulators.

Product Details

ISBN-13:	9781841132297
Publisher:	Bloomsbury Academic
Publication date:	12/05/2002
Series:	Oñati International Series in Law and Society
Pages:	264
Product dimensions:	6.14(w) x 9.21(h) x 0.56(d)

About the Author

Janine Griffiths-Baker is a Lecturer in the Law Department, University of Bristol.

Table of Contents

	Table of Cases	xi
1.	Introduction	1
	A Changing Profession	3
	The regulatory regime	8
	Regulating Conflicts of Interest	10
	The need for an empirical study	12
	Research Method	13
	Other Components of the Research	15
	Plan of the Book	16
2.	The Regulatory Regime	17
	Introduction	17
	Successive Representation	18
	Simultaneous Representation	43
	Summary	49
3.	The Modern Fiduciary: Conflicts in other Professions	51
	Introduction	51
	Conflicts at the Bar: Approach of the Bar Council of England and Wales	55
	Accountancy Conflicts: A 'Managed' Approach	63
	Fiduciary Duties and Regulatory Rules: the Law Commission's Findings	69
	Summary	72
4.	Conflicts of Interest: An International Perspective	75
	Introduction	75
	United States	77
	The Commonwealth	81
	Europe	90
	Summary	92
5.	Discovering Conflicts: Procedures and Dilemmas	95
	Introduction	95
	Obtaining Instructions and the conflict check	97
	The Frustrated Client	102
	Ensuring Confidentiality for Would-be Clients	103
	Protecting Clients' Identities From Colleagues	105
	Evaluating the Data	106
	Summary	106
6.	The Decision Whether to Act: Procedures and Interests	109
	Introduction	109
	Classifying conflict	114
	Competing Interests	116
	Law Society Guidance	116
	Clients' Views on Conflicts	119
	The Decision-Maker	120
	A Clear Divide	122
Group 1	The Big and Bold	123
Group 2	The Mindful Moderates	131
Group 3	The Pious Provincials	135
	Summary	140
7.	Acting in the Face of Conflict	143
	Introduction	143
	The Available Options	144
	Selecting the Measures (in Theory)	146
	Selecting the Measures (in Practice)	148
	The Client Perspective	158
	Summary	160
8.	Conclusion	163
	Introduction	163
	Law Society Rules and Legal Principles: The Debate	163
	The Empirical Evidence	173
	Possible Ways Forward	178
	Summary	186
	The Wider Context: Legal Ethics Within a Changing Profession	189
Appendix 1	Methodology	191
	Bibliography	201
	Index	209

Editorial Reviews

This is a timely work, which should do much to inform the debate within the profession as to the applicability of the law, and the profession's own rules, to the linked issues of client confidentiality and conflict of interest in the modern legal world.” —New Law Jourbanal, May 2003

From the Publisher