Lawyers have to avoid conflicts of interest



Example of a conflict of interest

Suppose a landowner Z blocks up a route over their land which two neighbours, A and B, have been using. A and B want legal advice about whether they have a right of way over Z's land and what they can do about the blockage. In order to advise on the right of way it may be necessary to look at old deeds and to ascertain what rights (if any) they granted and what areas of land the rights were granted to.

Suppose a lawyer agreed to accept both A and B as clients and to advise them both about this, on the basis that they are “on the same side” in having the common objective of preventing, if possible, the blocking up of the route.

Now suppose, when analysing the information available with a view to providing A and B with written legal advice, it became apparent to the lawyer that the physical boundary between A and B was in the wrong place, or might arguably be in the wrong place – say further towards B than it arguably should be. This would immediately give rise to a conflict of interest because it is not in A’s interest for B to be provided with advice which refers to this point. There might be a range of ways in which A might choose to proceed if such a boundary issue were to arise. A might decide to offer to reposition the boundary structure, if B wants them to, so as not to jeopardise potential co-operation between A and B against Z. Alternatively A might decide – particularly if the area of land forms an essential part of their garden – to seek advice on whether they can claim the land from B by “adverse possession”. Each option – and there may be others – will have their pros and cons for A, but it is clear that B being pre-emptively informed about the boundary issue by being provided with the written advice (advice which deals with the situation about Z and in doing so mentions the boundary question between A and B) before A has decided how they want to handle this new issue, would not be in A’s interest. But equally it would not be right for the lawyer, having been jointly instructed by A and B, to provide the written advice only to A and not to B, or to delay providing it to B after it has been provided to A.

You may ask: why not leave the information about the boundary issue out of the written advice? But a lawyer could not do that for two reasons. First the logic of, and analysis in, the written advice would naturally cover the boundary anomaly because ascertaining the limits of the areas covered by the grant of a right of way in each deed is part of the work of advising what can be done about Z blocking the route. Secondly, and more fundamentally, it would not be right if, when doing the work of writing the legal advice, the lawyer comes across significant information which it is in the client’s interest to know, for the lawyer not mention it. It may not be at the core of the matter which the lawyer is asked to advise on but if the lawyer happens to come across it, when doing work for the client, it is only right to alert the client so they can then take further advice on it if they wish, and if there are two clients of course the lawyer has to alert both.

So a lawyer has to avoid having two clients in any situations where there is a real risk of a conflict of interest between the clients.


There is no conflict of interest in advising A only even if the advice is about both A and B's rights

The problem of a conflict of interest arises only where there is more than one client. In some circumstances a lawyer may be asked to advise A not only about A's legal rights but also about B's legal rights. There is no conflict as long as it is clear that only A - and not also B - is the client.

So A could engage a lawyer to advise A about their legal rights and what A can can do about Z's actions in blocking the way. And the lawyer may also be able to advise A about B's rights. Of course there may be practical limitations in advising A about what B's rights are because A may not have access to all necessary information but the lawyer can attempt to advise A about B's rights which A may want to know with a view to, perhaps, in the future collaborating with B in making a legal claim against Z    

Many people find it hard to understand, initially, what the difference is between advising A whether A and B can take action against Z (in which case there is no conflict of interest), on the one hand, and advising A and B whether A and B can take action against Z (where there is a real risk of a conflict of interest). Perhaps the best way of thinking about it is that it is a question of who the advice is written for. If a lawyer gives written advice to A then the lawyer would expect A not to show it to B. Sometimes clients do show written advice to other people they trust, and that is their choice, but the key point is that the written advice contains the lawyer's frank appraisal of the situation – the weak points as well as they strong points in the client’s case. The lawyer can’t tone things down or omit things on the basis of who the client might eventually decide to show it to. It may contain practical advice about what the particular client, A, can do and the pros and cons and if it were written for B the advice and the balance of pros and cons might be different. 


Disclaimer

The above explanation of the law is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but contact me for advice 

This page was lasted updated in March 2020          Disclaimer