For those of you unfamiliar with the concept of ‘conflict’ this post may be an illuminating glimpse into a rarely discussed area of practice.
Essentially, a ‘conflict’ covers situations where it is inappropriate for a solicitor to advise a client because of previous or ongoing work with another person involved in the same case. That might be as straightforward as acting for a husband and being approached by his wife to act in their divorce, but it can also become hugely complicated as partners, step-families and lovers are involved.
It is always advisable to carry out a conflict check before seeing a new client. This is a relatively straightforward process involving a search of your client data base for details of other clients for whom the firm has previously acted. Picking up the conflict at this point saves the embarrassment of meeting the new client and having to tell them you can’t take the interview any further once the conflict becomes apparent.
However, some conflicts cannot be avoided, even with a check. That is because the conflict isn’t always apparent, or people are not forthcoming with all the information.
Recently, I saw a new client who had given a fictitious name and details when arranging his appointment. This happens to us sometimes particularly if the client is well known in the local area or in the media. I once walked into our reception expecting to meet a “Mrs Smith” and found a well known TV personality sitting on the settee, who apologised for using a false name.
The conflict check against the client came back clear; – as it would. When the man began to talk to me, he was in tears. He said picking up courage to see me and talk to a lawyer about the marriage was deeply painful, but he had discovered his wife was having an affair. He had thought so for a long time, but he had closed his eyes to it. Now he couldn’t any longer. The atmosphere at home was intolerable, she wasn’t civil to him, she had moved into a separate bedroom 6 months ago and he believed her heart was elsewhere. His health had suffered badly and he had made up his mind this couldn’t go on. He was filled with constant and turbulent feelings of sadness, bitterness, anger and jealousy which he said he couldn’t help. He hated with a passion the man who had stolen his wife and ended his marriage.
However, as he tearfully gave me his real name and that of his cheating wife, I suddenly had a thought about another client I had seen a few months ago and wondered if there could be a conflict. I stopped him and asked him a direct question. What was the name of the man she was having an affair with? He initially did not want to tell me, but I persisted. I explained I wished to rule out a potential conflict. He gave me the man’s name.
A few months earlier that very same man had come to see me. Self assured, confident, nicely dressed, he was charming, good looking and he knew it. He was thinking about leaving his wife and wanted to know the financial consequences before he finally made up his mind. He took advice as coolly as he would any commercial option. Emotions played no obvious part in his instructions to me or his response to my advice. And he never mentioned an affair. But experience taught me long ago that it was likely. I didn’t ask him and he didn’t volunteer it.
Looking at the heartbroken man sitting in front of me, my mind flashed straight back to that client. I don’t know why but it did, but my hunch was correct.
Then I had to do something very unpleasant. I had to explain to the potential client I was unable to advise him. When he asked why, I confirmed that there was a conflict but I could not say anything else.
The client knew his wife had seen another solicitor. He guessed my client must be her lover.
It was at this point the man lost his temper about the man he said had stolen his wife and now his lawyer – but there was nothing I could do. Rules 3 and 4 of The Solicitors Code of Conduct 2007 govern Conflict of Interest, and the Duties of Confidentiality and Disclosure. There clearly was a conflict in this particular case.
It seemed to the potential client that after all he has been through, to find out that the lawyer he has chosen to represent him is acting for ‘the other side’ was just another moment of defeat. I couldn’t go into details and couldn’t confirm his suspicion was correct. There was nothing I could do.
As he left our office to vent his anger to some unfortunate acquaintance on the phone, I did sympathise with this man’s plight. However, the slightest risk of a conflict must be acted upon by solicitors and they must quickly make up their minds whether to act or not. It isn’t always clear cut and there are also situations where there may appear to be a conflict but in fact there is not. In this particular case however, there was nothing I could do.
A later post will address the people who approach my firm to deliberately cause a conflict and the various situations that are thrown up as a result. In one case, the client’s own solicitor had expressly advised him to see us to conflict us out.
That, however, is a topic for another day!