If your solicitor has declared a conflict of interest, it means they can't continue to represent you because their duties to you might clash with their duties to another client or their interests.
This can happen at any stage of your case and is a serious issue because it affects the solicitor's ability to act in your best interests.
If your solicitor identifies a conflict of interest, they will advise you to find another solicitor.
Understanding conflicts of interest can help make sure you receive fair and unbiased legal representation. If you're in this situation, this article will help you understand what to do.
Table of Contents
- What is a legal conflict of interest?
- Why your solicitor may declare a conflict of interest
- Example of conflict of interest situations involving solicitors
- Confidentiality and loyalty in solicitor-client relationships
- Conflicts of interest in UK law
- Conflict of Interest Rules
- What happens when a conflict of interest is identified?
- How might a conflict of interest affect legal proceedings?
- What are my options if my solicitor has a conflict of interest?
- Can a solicitor act for both parties?
- Conclusion
What is a legal conflict of interest?
A legal conflict of interest happens when your solicitor's ability to represent you properly is compromised due to their involvement with another client or their own personal interests. This means that they might not be able to give you impartial advice or act in your best interests.
Solicitors in the UK are required by law to check for any potential conflicts of interest before they take on a client. If they find a conflict, they must either refuse to represent you or take steps to make sure that they can still represent you fairly, which might involve getting your consent if certain conditions are met.
In some cases, if both clients are fully informed about the conflict and agree to go ahead, the solicitor might still be able to represent both parties. However, this is only allowed under specific circumstances and with appropriate safeguards in place to protect each client's interests.
Why your solicitor may declare a conflict of interest
A conflict of interest can happen if:
A solicitor is asked to represent two clients whose interests are directly opposed in the same or related matters;
A solicitor has a personal relationship with a party involved in the matter (e.g. family member, close friend, or business associate);
A solicitor has previously acted for a party on the other side of the current matter or a related matter;
A solicitor has a financial interest in the outcome of a case;
A solicitor owes conflicting duties to two different clients;
A solicitor has confidential information from one client that could disadvantage another client they are asked to represent;
A third party, such as a funder or insurer, exerts influence over the solicitor's actions in a way that could compromise their duty to their client;
A solicitor is asked to perform multiple roles in a transaction;
There's a substantial risk that acting for one client would materially affect the solicitor's ability to act in the best interests of another client;
A solicitor receives conflicting instructions from different clients or even from different representatives of the same client.
In situations where a conflict of interest is identified, solicitors must either refuse to act or, if appropriate, seek the informed consent of all relevant parties, subject to the conditions laid down by the Solicitors Regulation Authority (SRA).
Example of conflict of interest situations involving solicitors
Here are some real-life examples of conflict of interest situations involving solicitors:
Acting for both parties in a divorce
A solicitor is approached by both the husband and wife during a divorce proceeding, with both parties asking the solicitor to represent them in negotiating a fair divorce settlement.
The solicitor can't act for both parties because their interests are inherently opposed. Each party needs independent legal advice to make sure negotiations are fair and impartial.
Acting for both buyer and seller in a property transaction
A solicitor is asked to represent both the buyer and seller in the sale of a property.
The solicitor might face conflicting duties in negotiating terms and making sure both parties' interests are adequately protected. This is generally not allowed unless certain exceptions apply and both parties have given informed consent.
Acting for a client against a former client
A solicitor previously acted for a large corporation in a business transaction. Later, they are asked to represent a competitor in litigation against that same corporation.
The solicitor may know confidential information from the previous relationship that could unfairly benefit the new client, leading to a conflict of interest.
Personal interest in a client's business
A solicitor is asked to provide legal advice to a company in which they have a significant shareholding or financial interest.
The solicitor’s personal financial interest might influence their advice, creating a conflict between their duty to provide independent legal counsel and their personal gain.
Family relationships
A solicitor is asked to represent one party in a will dispute where the other party is a close family member.
The solicitor’s personal relationship with the other party could compromise their ability to act impartially and in the best interest of their client.
Trustee and beneficiary conflict
A solicitor who is acting as a trustee for a trust is asked to represent a beneficiary of the same trust in a dispute regarding the trust’s administration.
The solicitor may have duties as a trustee that conflict with the interests of the beneficiary they are asked to represent, creating a conflict of interest.
Acting for competing clients in mergers
A solicitor's firm represents two companies that are direct competitors. One company is looking to acquire another, and both approach the firm for legal advice on the transaction.
The solicitor’s firm can't act for both companies because their interests are directly opposed in the merger or acquisition process.
Dual role in estate planning
A solicitor who is the executor of an estate is asked by one of the beneficiaries to provide legal advice on challenging the will.
The solicitor’s role as executor, which requires impartial administration of the estate, conflicts with their potential role as an advocate for a beneficiary challenging the terms of the will.
Confidentiality and loyalty in solicitor-client relationships
In a solicitor-client relationship, confidentiality means that any information you share with your solicitor is kept private. Your solicitor can't reveal this information to anyone else without your permission. This confidentiality allows you to be open and honest with your solicitor, which is essential for them to provide you with the best legal advice.
UK law strictly enforces this duty of confidentiality. If a solicitor breaches this confidentiality, they could face serious consequences, including disciplinary action by the Solicitors Regulation Authority. This could range from fines to being struck off the roll of solicitors, depending on the severity of the breach.
Loyalty is closely tied to confidentiality. Your solicitor must always act in your best interests, and this includes keeping your information confidential unless you consent to disclosure or the law requires it.
There are very few exceptions where a solicitor might have to disclose information, such as preventing serious harm or complying with legal obligations.
These duties are fundamental to the trust between you and your solicitor, ensuring that your rights and interests are fully protected throughout your legal proceedings.
Conflicts of interest in UK law
In the UK, the rules governing conflicts of interest for solicitors are primarily established by the Solicitors Regulation Authority (SRA). These rules are laid out in several key documents, including the SRA Standards and Regulations (STAR), the Code of Conduct for Solicitors (SCCS), and the Code of Conduct for Firms (SCCF).
SRA Standards and Regulations
The SRA Standards and Regulations require solicitors to uphold key principles in their work:
With honesty.
With integrity.
With independence.
In the best interest of each client.
Code of Conduct for Solicitors (SCCS)
The SRA Code of Conduct for Solicitors (SCCC) guides the conduct of individual solicitors, Registered European Lawyers (RELs) and Registered Foreign Lawyers (RFLs). The guidelines dictate that solicitors must:
Be skilled and keep their knowledge up to date;
Not take unfair advantage of anyone, including clients;
Explain things clearly to clients, so they understand their options and can make informed decisions;
Follow all laws and regulations that apply to their work.
Code of Conduct for Firms
The SRA Code of Conduct for Firms (SCCF) guides the conduct of law firms and sole practitioners providing legal services to clients. The guidelines state that firms must:
Not exploit clients or others;
Keep proper records;
Have effective systems in place to supervise the work being done for clients;
Make sure all employees are competent and their skills are kept up to date.
Conflict of Interest Rules
Both the SCCS and SCCF have specific rules about conflicts of interest. According to these rules, solicitors must identify and avoid conflicts of interest. However, there is no strict test to determine if a conflict exists—it is up to the solicitor's judgment in each case.
The Law Society advises that solicitors should always check for conflicts of interest before taking on a new client or matter.
This means conducting conflict checks is a routine part of the legal process to ensure that the solicitor can act in the best interests of their client without any conflicting duties.
What happens when a conflict of interest is identified?
When a conflict of interest is identified, the solicitor must promptly inform all affected clients. If the conflict is such that it can't be resolved in a way that allows the solicitor to continue representing either party without compromising their duties, the solicitor must decline to act for both parties.
If the conflict of interest is discovered after the solicitor has already begun representing one or both parties, the solicitor is required to terminate the retainer (the formal agreement between the solicitor and the client). Depending on the situation, this termination may apply to one or both clients. The solicitor must stop all actions that could advance the interests of either party in the conflict scenario.
The solicitor should discuss the potential risks associated with the conflict of interest with the clients involved. This includes explaining the nature of the conflict, how it might affect the solicitor’s ability to represent them, and the steps that will be taken to mitigate these risks.
In some cases, both parties involved in the conflict may agree to waive the conflict of interest. This means they consent to the solicitor continuing to represent them despite the conflict, under the understanding that the solicitor will do their best to remain impartial. However, such waivers are subject to strict conditions and are only allowed when the solicitor can reasonably act in the best interests of both parties.
How might a conflict of interest affect legal proceedings?
If a conflict of interest is not properly managed, it may have adverse effects on legal proceedings. These effects include:
Distrust from clients toward their solicitors.
Loss of credibility, disqualification of the solicitor by the judge.
Lengthy legal proceedings.
Suspension or disbarment of the solicitor by the SRA.
What are my options if my solicitor has a conflict of interest?
If your solicitor has a conflict of interest and has disclosed this to you, the following options are available to you:
Hire a new legal representative.
Request alternative representation from the firm if the solicitor assigned is conflicted.
Report the issue to the SRA or other professional bodies for proper disciplinary action.
In the case of dual representation, both parties may waive the conflict of interest and continue engaging the services of the conflicted solicitor.
How to find a new solicitor
If your solicitor identifies a conflict of interest, you are free to choose a new solicitor, and your current one may help transfer your case file to the new firm.
You can easily find solicitors by doing a quick online search or asking friends, family, or colleagues for recommendations.
Once you've selected a new solicitor, the process of transferring your case typically involves:
Signing a Form of Consent or an engagement letter, establishing them as your legal representative;
Your new solicitor contacting your previous solicitor to request the transfer of your files and documents;
Provided there are no outstanding fees or issues, your previous solicitor will send your case files to your new solicitor.
Can a solicitor act for both parties?
A solicitor can only act for both parties in a legal dispute in very specific and limited circumstances. This is known as dual representation, and it is strictly regulated due to the potential for conflicts of interest.
Dual representation may be allowed in situations where there is a common interest between the parties, and the likelihood of a conflict of interest is minimal. For example:
If family members are amicable and have agreed on the terms of their arrangement, such as in certain family law matters like the drafting of a mutually agreed-upon will or trust.
Where both parties have a substantially common interest in the outcome of a transaction, such as two businesses entering into a joint venture where the terms are fully agreed upon beforehand.
Even in these cases, dual representation is surrounded by strict rules and guidelines:
Both parties must give their informed consent in writing, acknowledging that the solicitor is acting for both sides.
The solicitor must be confident that there is no significant risk of a conflict of interest arising. If at any point a conflict does emerge, the solicitor must stop acting for both parties.
The solicitor must clearly explain the potential risks of dual representation to both parties.
However, in most legal disputes, especially where the parties' interests could conflict, dual representation is not allowed.
Conclusion
A legal conflict of interest can significantly impact your solicitor's ability to represent you effectively. If your solicitor is faced with a conflict of interest, you have a couple of options:
Waive the conflict if it's minor and both parties agree;
Transfer your case to another solicitor.
If you find yourself in a situation where your solicitor has declared a conflict of interest and can no longer represent you, our network of expert solicitors is on hand to help.
Contact us today for a free case evaluation and personalised quote.