What are some common own interest conflicts?
- Financial interest in client
• Substantial gift from client - Usually must not act (unless client has taken independent advice with regard to making the gift)
- Financial interest in other side
• Own employment
• Personal relationship with other side - Business transaction with client
- Own mistake in matter where client can rectify losses by bringing professional negligence claim against the firm.
Can a Solicitor act despite an own interest conflict?
NO! where there is an own interest conflict or risk of one, you can’t act. NO EXCEPTIONS.
What is the position with referral fees & personal injury claims?
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 prohibits the payment or receipt of referral fees in claims for damages following personal injury or death.
Duties to the court
Duty to draw the court’s attention to relevant cases and statutory provisions and any procedural irregularities if they are likely to have a material effect on the outcome of proceedings.
Example:
At a court hearing, you know of a relevant case, which hasn’t been mentioned by the opposing solicitor.
There is a duty to draw this to the court’s attention even if the case is contrary to vour client’s position.
You may then seek to distinguish the case. That is to explain to the court that the facts or law in that case are a bit different to those involved now, but you mustn’t just ignore it.
What is the duty when the client has authorised some to give instructions on their behalf?
You have a duty to investigate if you have reason to suspect that authorised persons instructions do not represent your client’s wishes, you must not act unless you are satisfied that they do.
Note: must only act on instructions from client unless someone authorised to give instructions.
What are the 2 exceptions to not acting if there is a conflict between clients, or a significant risk of conflict?
• Exception 1: Substantially common interest
• Exception 2: Competing for same objective
Conditions:
- clients give informed consent for you to act, must be given or evidenced
in writing. Informed means with the knowledge of all the facts–
- where it is appropriate, there must be effective safeguards to ensure each client’s information is kept confidential.
What is an undertaking and provide best practice for undertakings?
a statement to do something or not to do something that another person relies on
Should be in writing. That way, there is less of a chance of someone mishearing, and there is proof of what was actually said.
An undertaking on behalf of a client should only be given with the client’s authority,and there should be a record on the file that an undertaking has been given. That way, if anybody other than the person who gave the undertaking, is to deal with the matter in the future, they are aware that the undertaking binds the firm.
- firm should have a clear policy as to who is allowed to give undertakings because any undertaking given on behalf of the firm will bind the firm.
To avoid unwittingly entering into an undertaking, use following phrase:
I will use my best endeavors
