Whether practising as a sole practitioner, a member of a medium-sized practice or a national or international practice, our lives are replete with potential conflicts of duties. We must learn to identify the situations and to anticipate potential problems. Some basic rules may help:
- Do not think of a conflict of duties, but of potential duties. Look at what we are being asked to do from the point of view that there is – or could be – a conflict in duties, rather than from the perspective that there is not.
- Think not of conflict, but rather of ‘impaired loyalty’. Although the fundamental ethical duties in rule 4 of the Australian Solicitors Conduct Rules 2012 (Qld) (‘ASCR’) and the concurrent conflict rule in rule 11 ASCR do not use these words, they encapsulate what is a core responsibility to ‘act in the best interests of a client’. Our question should be, ‘is there any way, through my representation, in which my loyalty to the client may be impaired?’
- We need to remember that although a large percentage of conflicts may never eventuate, it is not possible to predict the one that will. The only way for us to protect the interests of all clients – and our own – is a basic rule – we must avoid conflicts before the duties owed to two or more clients collide (rule 11.1 ASCR).
Where clients seek us to represent them in same or related matters then we need to openly and fully explain how our primary responsibility of loyalty will be impaired. This disclosure must be meaningful and comply with rule 11 ASCR. At a minimum, we must advise each client of:
- the intention for us to act for another client at the same time in the same or a related transaction, and
- obtain each client’s informed consent to so acting (this means each client must understand the actual and reasonably foreseeable adverse consequences of the representation – including any impairment to our duty of confidentiality).
We should:
- ensure all our communications to our clients are in writing, explaining the impact upon them of concurrent representation,
- obtain the consent of each client in writing,
- address what happens to solicitor-client confidences in such concurrent representation situations,
- spell out specific ramifications arising from multiple representations in a ‘if/then’ format, and
- address the ground rules of what will happen in the event of a conflict arising, including withdrawal and the additional costs a client will have.
Agree with the clients in advance how confidential information will be treated. The best position would be to agree – as part of your retainer – that, among multiple clients, there shall be no confidences or secrets. Also spell out to the client that if he or she insists on revealing to us a confidence, then the consequence is that we must withdraw.
Remember, our client’s ‘informed consent’ cannot cure all conflicts. If we adopt these steps then our client will know and appreciate the risks arising from concurrent representation.