Evolution of Legal Ethics

Introduction

In the field of law, incident of conflict of interest between two or more clients have always been marked as one of the most essential parts of the English common legal ethics or practices since a long time. Before the world became virtual and the pleading of the courts became online and the diversity did not embrace a global character in the legal field of the United Kingdom, the concept of legal ethics and the conflict of interest was easier to set aside. But with increasing law firms and solicitor firms, the clients are being presented with several choices and they refuse to stick to only one lawyer or firm on a retainer basis which was the orthodox way of the English common law. As it has been rightly observed by Daniel J. Bussel, the modern law has essentially outdated the age old and ancient conflict of interest theory and the legal ethics thereof. In this essay we shall discuss the recent law on the legal ethics and conflict of interest that governs the English lawyers and solicitors and critically assess therein whether the current law on the same subject reflects the interests of the diversity and globalization of the legal field.

The concept of Conflict of interest

As a concept in the English common law, conflict of interest provides the source of the most pervasive issue that has been faced by the modern lawyers, practicing the field of English law. At the onset, every lawyer or solicitor has two basic fiduciary duty – a) The duty to preserve the confidentiality of the client b) to be loyal to the client you have been assigned to. Under these two important fiduciary duties, a lawyer must value and perverse the sanctity of the attorney-client confidentiality. Hence, it is the fundamental duty and privilege of a client to discuss all the points of facts and in law with full disclosure and in this instant situation, the attorney in question shall be bound by the legal ethics of England.

Hence, the question of conflict of interest comes into play in a case where the client has already fully disclosed details regarding case and from such very point, the client shall reserve or enjoy the right to maintain the confidentiality of their information with their attorney only. Conflict of interest comes into play if the lawyer’s or attorney’s representation in other matters with other clients or in any other grounds which might be the attorney’s personal grounds, shall adversely and materially affect the fiduciary duty the particular attorney owes to a present client or a former client of whatsoever nature.

1. Bussel, Daniel J., No Conflict (2012). Georgetown Journal of Legal Ethics, UCLA School of Law, Law-Econ Research Paper No. 12-01, vol. 25, no. 207, Available at < SSRN: https://ssrn.com/abstract=1978976 > [ accessed on 13th Sept, 2021]
2. Wolfram, Charles. MODERN LEGAL ETHICS (1986). West Publishing Company, 2nd edn., pp. 7-10
3. Flannigan, Robert. “The Fiduciary Obligation.”(1989). Oxford Journal of Legal Studies, vol. 9, no. 3, Oxford University Press, pp. 285–322

Conflict of Interest under the English Common Law

Unlike many other country’s ethical legislation on the subject of conflict of interest and many other activities of an attorney in a legal field, English law or the United Kingdom provides a ‘principle-based approach’ to conflict of interest. Hence, under the English common law, there are no legislations regarding the legal ethics but there only exist codes of conduct that governs the solicitors and the attorneys of the legal field are expected to be abide by such code of conduct at any cost.

The SRA code of conduct or the Solicitor’s Regulation Authority states the code of conduct under which the area of conflict of interest has been expressly stated and elaborately explained as to in which situation a lawyer can take up matters without being subjected to a conflict of interest and under which situation, he/she might be subjected to such conflict of interest herein.

Under the SRA code of conduct, paragraph 6.1 and 6.2 deals with the concept of conflict of interest for individual solicitors, RELs and RFLs and the conflict of interest or code of conduct for a firm respectively. As per paragraph 6.1 of the code of conduct, an attorney cannot act in a certain matter where he/she has own personal conflict of interest i.e. if an attorney has any personal relationships with the opposite party or any other ground that provides a personal flavor of conflict of interest. According to paragraph 6.2 of the SRA code of conduct, an attorney cannot act in a way that might put him/her or the firm under a conflict of interest between two or more clients. For example, as it has been set out in para. 6.2 of the SRA code of conduct that if you are acting on behalf of one client, you cannot advise or act on behalf of the spouse of that client in any family proceeding. Thus, if you have acted in the past on behalf of one client, you would not be restricted from acting on behalf of their former spouse later. Hence, the focus point of the SRA code of conduct speaks of how an attorney cannot advise both of the parties in a legal proceeding at the same time or speak on behalf of both of them at the same time and in the same matter.

1. Atkinson, Michael M., and Maureen Mancuso. “Conflict of Interest in Britain and the United States: An Institutional Argument.” (1991). Legislative Studies Quarterly, vol. 16, no. 4, [Wiley, Comparative Legislative Research Center], pp. 471–93
2. Ibid
3. SRA Code of Conduct for Solicitors, RELs and RFLs. Solicitors Regulation Authority, para 6.1 < https://www.sra.org.uk/solicitors/standards-regulations/code-conduct-solicitors/ > [accessed on 13th Sept, 2021]
4. SRA Code of Conduct for Firms. Solicitors Regulation Authority, para 6.2 < https://www.sra.org.uk/solicitors/standards-regulations/code-conduct-solicitors/ > [accessed on 13th Sept, 2021]
5. Ibid

Thus, under the English Common Law, the below-mentioned grounds should be maintained by an attorney in order to preserved the SRA regulated conflict of interest:

An attorney must uphold the proper administration of justice in need of his/her client and balance the respective obligations an attorney owes to their client, the court of justice and any other third parties thereof.

The independence of the attorney should not be compromised and the attorney should not be regulated by any third party for any pecuniary interest or any other personal interest whatsoever.

The legal and regulatory compliances that are set for an attorney should be maintained at all times and for any other purposes for your judicial administration before the court of law, your client shall come first.

You should have an absolute interest in preserving the money and asset of your client at all material times.

In the case of Hilton (Appellant) v. Barker Booth and Eastwood (a firm) , it was held that if the respondent had acted in a former case of the appellant and if the former interest of the former client is not present at the time of the firm dealing with the appellant party herein, it shall not be covered under the clauses of conflict of interest in whatsoever nature and that the appellant shall have the duty to provide the appropriate fees for the respondent therein.

In the case of Locabail (UK) Ltd v Bayfield Properties Ltd, in this particular case, it was held by the England and Wales High court that the conflict of interest is matter to be pursued and it differs from one case to another.

Also, in the case of Magill v. Porter, it has held that there exist a difference between an actual conflict of interest and a potential conflict of interest and in a case where one party has a potential conflict of interest with one of the opposite party, does not render the whole representation of the firm void herein.

1. Atkinson, Michael M., and Maureen Mancuso. “Conflict of Interest in Britain and the United States: An Institutional Argument.” (1991). Legislative Studies Quarterly, vol. 16, no. 4, [Wiley, Comparative Legislative Research Center], pp. 471–93
2. Hilton v. Barker Booth and Eastwood, [2005] UKHL 8
3. Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451
4. Magill v. Porter, 2001 UKHL 67

Critical assessment of the UK code on Conflict of Interest for attorneys

As it has been essentially spoke of before that in view of the modern legal representation and the legal method and the diversity that we can observe in case of legal field, the code of conduct in relation to the conflict of interest might play a difficult role than it was before. As it has been seen from various scholars’ work that the legal field is in transition and it is inherently changing. Unlike the time in the past when the attorney-client relationship was solely based on the retainer process, most of clients nowadays like to keep their relationship one time basis and the clients have adopted the likeliness to explore more options which would be suitable for their own class of interest and nature of the particular case in hand. Therefore, the grounds for conflict of interest have been inherently expanded for the lawyers and it has become more and more difficult for the attorneys to work in an environment that is free of conflict of interest. Continue your journey with our comprehensive guide to Common Law Complexities to Modern Jurisprudence.

If we can critically assess the code of conduct provided by the SRA, it can be stated that the rules and regulations might be updated but it still follows the conduct of conflict of interest of an age that did not face the modern consequence and the change in dynamics of the legal field in England and Wales and therefore it can be critically assessed that the law relating to conflict of interest needs to be updated and amended according to the needs of the modern world and the modern legal field.

Hence, in critically discussing the same, it can be stated that for the purpose of proposing a more modern law of conflict of interest, there can be two grounds – a) Each and every case should be examined in reference to their unique position and as such the conflict of interest should be judged according to such degree and as such the old SRA code of conduct shall be followed or,

1. Tata, Cyrus. “In the Interests of Clients or Commerce? Legal Aid, Supply, Demand, and ‘Ethical Indeterminacy’ in Criminal Defence Work.” (2007). Journal of Law and Society, vol. 34, no. 4, [Cardiff University, Wiley], pp. 489–519
2. Gordon, Robert W. “Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History.” (2019). Daedalus, vol. 148, no. 1, [American Academy of Arts & Sciences, The MIT Press], pp. 177–89
3. Bussel, Daniel J., No Conflict (2012). Georgetown Journal of Legal Ethics, UCLA School of Law, Law-Econ Research Paper No. 12-01, vol. 25, no. 207, Available at < SSRN: https://ssrn.com/abstract=1978976 > [ accessed on 13th Sept, 2021]

b) That the rule of conflict of interest should be regarded as a more flexible rule and if there are any conflict of interest in any case, the lawyer or the firm on the record should be removed from the case by providing him the rendered service fee till now and as such no hardcore punishment shall not be inflicted upon that particular solicitor or the law firm, however, that should be pertaining to their unique case nature.

In critically assessing the abovementioned SRA code of conduct and other provisions thereof, it can be stated that the latter version of conflict of interest provides more suitability and it shall provide the client with more scope in providing the scope of exploring more legal options without harming the provisions and field of the attorneys therein.

Conclusion

In concluding the above discussed critical assessment, it can be stated that in order to match the modern world of legal field, the conflict-of-interest code of conduct or law should be amended and it needs to be more flexible in nature which shall be provided the attorneys with adjustable grounds to deal with clients at the same time.

BIBLIOGRAPHY

Journals

Atkinson, Michael M., and Maureen Mancuso. “Conflict of Interest in Britain and the United States: An Institutional Argument.” (1991). Legislative Studies Quarterly, vol. 16, no. 4, [Wiley, Comparative Legislative Research Center], pp. 471–93

Bussel, Daniel J., No Conflict (2012). Georgetown Journal of Legal Ethics, UCLA School of Law, Law-Econ Research Paper No. 12-01, vol. 25, no. 207, Available at < SSRN: https://ssrn.com/abstract=1978976 > [ accessed on 13th Sept, 2021]

Flannigan, Robert. “The Fiduciary Obligation.”(1989). Oxford Journal of Legal Studies, vol. 9, no. 3, Oxford University Press, pp. 285–322

Gordon, Robert W. “Lawyers, the Legal Profession & Access to Justice in the United States: A Brief History.” (2019). Daedalus, vol. 148, no. 1, [American Academy of Arts & Sciences, The MIT Press], pp. 177–89

Tata, Cyrus. “In the Interests of Clients or Commerce? Legal Aid, Supply, Demand, and ‘Ethical Indeterminacy’ in Criminal Defence Work.” (2007). Journal of Law and Society, vol. 34, no. 4, [Cardiff University, Wiley], pp. 489–519

Books

Wolfram, Charles. MODERN LEGAL ETHICS (1986). West Publishing Company, 2nd edn., pp. 7-10

Case Laws

Hilton v. Barker Booth and Eastwood, [2005] UKHL 8

Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451

Magill v. Porter, 2001 UKHL 67

Legislations/Others

SRA Code of Conduct for Solicitors, RELs and RFLs. Solicitors Regulation Authority, para 6.1 < https://www.sra.org.uk/solicitors/standards-regulations/code-conduct-solicitors/ > [accessed on 13th Sept, 2021]

SRA Code of Conduct for Firms. Solicitors Regulation Authority, para 6.2 < https://www.sra.org.uk/solicitors/standards-regulations/code-conduct-solicitors/ > [accessed on 13th Sept, 2021]