So you’ve just separated from your spouse and divorce proceedings beckon. You obviously want to instruct the best lawyer you can find, but then so does your spouse. If you both have excellent lawyers, then you have no advantage in that regard over your spouse. What to do?
Well, one answer is to take steps to prevent your spouse from using a top lawyer. How do you do that? Why, by conflicting them out of acting for your spouse, of course!
OK, so what do I mean by ‘conflicting them out’? Well, there is a rule whereby a lawyer cannot act for a client where there is a ‘conflict of interests’. The Solicitors Regulation Authority have a Code of Conduct governing how solicitors should behave. The Code defines ‘conflict of interests’ as any situation where:
(i) [the solicitor] owes separate duties to act in the best interests of two or more clients in relation to the same or related matters, and those duties conflict, or there is a significant risk that those duties may conflict (a “client conflict”); or
(ii) [the solicitor’s] duty to act in the best interests of any client in relation to a matter conflicts, or there is a significant risk that it may conflict, with [the solicitor’s] own interests in relation to that or a related matter (an “own interest conflict”).
In other words, a conflict of interests arises where the interests of the client conflict with those of another client, or the solicitor. The most common scenario is a litigation case where the solicitor has previously acted for one party in connection with the same or a related matter, and is then asked to act for the other party. In such a case the first party would be at a disadvantage if they had disclosed confidential information relevant to the case to the solicitor, and there would therefore be a conflict.
If there is a conflict then the solicitor should decline to act for the second party. If they do not, then the first party may raise an objection to the court, and the court can bar the solicitor from acting further for the second party.
So, armed with this knowledge a party to divorce proceedings can ‘temporarily’ instruct a firm of solicitors, with the sole purpose of ensuring that they are unable to act for their spouse. In fact, they can temporarily instruct whatever firms they don’t want to act for their spouse, before settling on the firm that they actually want to represent them.
That, according to a finding by Mr Justice Williams, was at least in part the motivation of the husband in the recent case S -v- S (Application to Prevent Solicitor Acting), when his representative consulted several firms of solicitors about his divorce.
Very briefly, the relevant facts in the case were that the husband claimed that in November 2015 his representative had consulted six different firms of solicitors, apparently with the intention of deciding which firm should act for him in connection with his divorce. When he found that his wife had instructed one of those firms he applied to the court for that firm to be debarred from acting for her on the basis of a conflict of interests, the solicitor in the firm, he claimed, having been privy to confidential and privileged information.
Hearing the application, Williams J set out the issues. For the sake of this post, I will reduce them to just two: did the meeting between the husband’s representative and the solicitor take place, and if it did, can the husband prove that any confidential or privileged material relevant to the divorce proceedings was communicated to the solicitor?
As to the first issue, Williams J found that the meeting had taken place. However, he did not find that any confidential material was imparted to the solicitor, or that any privileged information or advice arose. He concluded that it was a very brief meeting which perhaps the representative was attending to complete the job of going around the firms he had been instructed to, with the parallel intention to conflict them. Accordingly, the husband’s application was dismissed.
An interesting case, but perhaps not a good advert for the tactic of conflicting firms out of acting for your spouse!
You can read the full report of S v S here.