a

Acting Against a Former Client – When are Matters Not “Related”?

[2010] SGHC 290
Article in the Law Gazette of the Law Society of Singapore discussing the decision in Vorobiev Nikolay v Lush John Frederick Peters and others

Akai Holdings v Robson Rhodes

[2007] EWHC 1641 (Ch)

A proposed merger of a firm of accountants, which was instructed to provide expert evidence in an action against auditors, with another firm that had been retained by the auditors gave rise to a conflict of interest and breach of the retainer.

Lawtel subscribers only

Albion Plc v Walker Morris (A Firm

[2006] EWCA Civ 429

Former client – confidential information, application of principles in Prince Jefri Bolkiah v. KPMG (A Firm) [1999] 2 AC 222. Solicitors restrained from acting.

Alfred Street Properties Ltd v Dunnes Stores (Bangor) Ltd [2017] NICh 19

The High Court in Northern Ireland refused to restrain solicitors from acting where they had acted for the opposing party 20 years previously. The decision also addresses the delay in making the application, which suggested that the underlying reason for the application was tactical.

American Bar Association Model Rules of Professional Conduct

These Model Rules of Professional Conduct serve as models for the ethics rules of most states in the United States. However the rules of individual states may vary significantly. See Model Rules 1.7 to 1.11.

Asia Pacific Telecommunications Limited v Optus Networks Pty Limited

Second judgment: [2007] NSWSC 350

Solicitors restrained from acting where inadvertent conduct constituted a breach of prior undertaking in relation to information barrier.

Asia Pacific Telecommunications Limited v Optus Networks Pty Limited

First judgment: [2005] NSWSC 550

Application to restrain solicitors from acting refused on the basis of information barrier supported by undertakings.

Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Limited

(ACN 113 114832) (No. 4) [2007] FCA 963 (28 June 2007)

Whether respondent financial institution and client were in a fiduciary relationship, adequacy of information barrier.

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Ball v Druces & Attlee

[2004] EWHC 1402 (QB)

Breach of fiduciary duty to former client in relation to confidential information, Damages awarded for breach of contract/negligence (but no additional award for breach of fiduciary duty).

Ball v Druces & Attlee

[2002] EWCA Civ 157

Whether claimant was personally a former client – confidential information, application of principles in Prince Jefri Bolkiah v. KPMG (A Firm) [1999] 2 AC 222. Solicitors restrained from acting.

Belize Bank Ltd. v. Government of Belize, 2017 WL 1193700 (D.C. Cir. March 31, 2017)

US decision in a case arising from enforcement of an arbitration award held under the London Court of International Arbitration (LCIA) Rules, holding that an English barrister appointed as arbitrator was not subject to a conflict where another member of the barrister’s chambers had represented interests adverse to the Government of Belize, because English barristers operate as independent practitioners.

Boardman v Phipps

[1966] UKHL 2

Solicitor required to account for profits as constructive trustee, use of confidential information

Bolkiah v KPMG

[1998] UKHL 52

Landmark case on protection of confidential information of former client and efficacy of information barrier.

Bolt Burdon Solicitors v Tariq & Ors [2016]

EWHC 811 (QB)
A solicitor had no conflict of interest in negotiating a contingency fee agreement, and, on the facts, no obligation to tell the claimant, an experienced businessman, to seek separate advice.

Bristol and West Building Society v Mothew

Millett LJ described a fiduciary as "..someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he must not act for his own benefit or for the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations."

British Sky Broadcasting v Virgin Media Communications

[2008] EWCA Civ 612 (06 June 2008)

Freedom to instruct lawyer of choice

Bureau Interprofessionnel Des Vins De Bourgogne v Red Earth Nominees Pty Ltd (t/as Taltarni Vineyards)

[2002] FCA 1293

Lateral hire, order restraining solicitors from acting refused as no real risk of disclosure of confidential information

c

Canadian Bar Association Task Force on Conflicts of Interest

CBA members only

Final Report, Recommendations and Toolkit

Carindale Country Club Estate Pty Ltd v Astill [1993] FCA 218; (1993) 115 ALR 112 (1993) 42 FCR 307

Australian case considering ‘Getting to know you’ factors, referred to in American cases as ‘playbook conflicts’, holding that the information in question must be identified with precision and not merely in global terms in order to constitute confidential information.

CenTra Inc. v. Estrin

538 F.3d 402 (6th Cir. 2008)

Informed consent - sophisticated client

Cinema 5 Ltd v Cinerama, Inc 528 F.2d 1384 (2d Cir. 1976)

American case where an attorney was a partner in two law firms in New York and Buffalo respectively. The firms (but not the partner in question) acted for two clients who were in dispute on competition matters. The court disqualified the New York firm from acting. The court found that ‘they were confident that he would make every effort to disassociate himself from both lawsuits and would not divulge any information that came to him concerning either. However, they could not impart this same confidence to the public by court order.’

City of Atlantic City v. Trupos

201 N.J. 447, 992 A.2d 762 (2010)

Meaning of “Substantially Related Matters”

Clark Boyce v Mouat

[1994] 1 AC 428 Lawtel subscribers only

Solicitor acting for two parties in a transaction with informed consent – limited retainer

Code of Conduct 2007, Solicitors’: Rule 15, Overseas practice

Please note this has now been repealed by the SRA Code of Conduct 2011 with effect from 6 October 2011.

Code of Conduct 2007, Solicitors’: Rule 16, European cross-border practice

Please note this has now been repealed by the SRA Code of Conduct 2011 with effect from 6 October 2011.

Code of Conduct 2007, Solicitors’: Rule 3 - Conflict of interests

Please note this has now been repealed by the SRA Code of Conduct 2011 with effect from 6 October 2011.

Code of Conduct 2007, Solicitors’: Rule 4 - Confidentiality and disclosure

Please note this has now been repealed by the SRA Code of Conduct 2011 with effect from 6 October 2011

Concat LP & Chelator LLC v Unilever

350 F. Supp. 2d 796, 822 (N.D.Cal. 2004)

US case - Morgan Lewis & Bockius LLP disqualified in substantially related matters. An advance waiver lacked informed consent, and the screen was too late to be effective.

Connolly v Law Society

[2007] EWHC 1175 (Admin) (17 May 2007)

‘[Generally] the honest and genuine decision of a solicitor on a question of professional judgment does not give rise to a disciplinary offence’

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Dennard v PricewaterhouseCoopers LLP

[2010] EWHC 812 (Ch)

Claimants failed to establish an own interest conflict (made to overcome a limitation of liability clause which did not apply to conflicts of interest)

DQED: The Lawyer Disqualification Blog

Blog by Keith Swisher, Associate Professor of Law at Arizona Summit Law School, about disqualification in litigation.

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e2Interactive, Inc. v Blackhawk Network, Inc.

2010 WL 1981640 (W.D. Wis. 2010)

Advance waiver, subsidiaries and affiliates. Motions to disqualify require the court to balance "the sacrosanct privacy of the attorney-client relationship (and the professional integrity implicated by that relationship) and the prerogative of a party to proceed with counsel of its choice."

Ecclesiastical Insurance Office v Lady Whitehouse-Grant-Christ [2017] CSIH 33

Scottish case: Firm A acted for a policyholder in an insurance dispute, then ceased acting. Firm B acquired Firm A, employing the solicitor who had acted for the policyholder as a part-time consultant, and other members of the firm acted for the insurer in the same dispute. There was no formal information barrier in place, but Firm B submitted that there was no risk of casual or accidental disclosure. The Inner House of the Court of Session declined to order Firm B to cease acting. However the court expressed the view that the case may prompt the professional bodies to reflect on their codes of conduct.

Enterprise Insurance Company PLC sub nom Frederick David John White v Ozon Solicitors Ltd (2017) [2017] EWHC 1595 (Ch)

(Lawtel subscribers only)

A claims control clause in an insurance policy entitled the insurer’s liquidator to terminate a solicitor’s retainer and appoint other solicitors to act for the insurer and the insured. Groom v. Crocker [1939] 1 KB 194 and Reg. 6 of the Insurance Companies (Legal Expenses Insurance) Regulations 1990 considered.

Excalibur Ventures LLC v Texas Keystone Inc & Ors

[2016] EWCA Civ 1144
Own-interest conflict arising from litigation funding agreement and the claimants’ solicitors investment in the case.

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Galderma Laboratories v Actavis Mid Atlantic LLC

927 F. Supp. 2d 390, 406 (N.D. Tex. 2013)

US case – A ‘general and open-ended waiver’ would ordinarily be ineffective but if the client is ‘an experienced user of legal services’ and is ‘reasonably informed regarding the risk that a conflict may arise,’ the consent is more likely to be effective. Galderma was a sophisticated client and the waiver was held to apply.

Generics (UK) Ltd v (1) Yeda Research & Development Co Ltd (2) Teva Pharmaceutical Industries Ltd

[2012] EWCA Civ 726

Whether the principles in Bolkiah v KPMG [1999] 2 A.C. 222 applied with equal force to a former employed or in-house litigator – tentative, obiter view that they did not.

Georgian American Alloys Inc & others v White & Case LLP

[2014] EWCH 94

Solicitors from acting against a former client in commercial proceedings against their owners - real risk of misuse of confidential information which the solicitors had acquired when previously acting for the companies.

Gillette Co. v. Provost

2016 WL 2610677 (Mass. Super. Ct. May 5, 2016)

US case on meaning of ‘substantially related’ in an intellectual property case.

GSI Commerce Solutions v. Babycenter, 618 F.3d 204 (2d Cir)

American decision on conflict in relation to corporate affiliate/subsidiary

Gus Consulting GmbH v Leboeuf Lamb Greene & Macrae

[2006] EWCA Civ 683

Lateral hire – Court of Appeal refused to restrain solicitors from acting as the risk of disclosure was more theoretical than real; the information related to transactional matters conducted some years before. One had to stand back from the adversarial process and assess how likely the risk of disclosure really is.

h

Halewood v Addleshaw Booth [2000] PNLR 788

(Westlaw subscribers only)

An injunction was refused upon the basis that the firm of solicitors undertook that the lateral hire solicitor with knowledge of material information would work in a separate office.

Harlequin Property (SVG) Ltd & Anor v Wilkins Kennedy (a firm) [2016] 3188 EWHC (TCC)

Accountants’ professional liability claim involving acting where there was a conflict of interest and the accountants failed to obtain informed consent. The judge found that there were also breaches of the duty of confidentiality. An information barrier (referred to in the judgment as ‘Chinese Walls’) was found to be ineffective. A solicitor acts in a different professional, regulatory and ethical context from an accountant. An accountant who was subject to a conflict of interest had no duty to disclose one client's confidential information to the other client, even if the accountant should not have accepted the second engagement. (See para. 494.)

Hilton v Barker Booth & Eastwood

[2005] UKHL 8 (03 February 2005)

Solicitors who acted for two clients in a property transaction, despite a conflict of interests, were held liable to the claimant. Their duty to the claimant was not modified by the fact they owed duties to the other client. It would be a breach of duty to a client to provide information relating to that client (in this case, a conviction) to the claimant even though it was in the public domain.

Hong Kong Solicitors’ Guide to Professional Conduct

See Chapter 7 The fiduciary duty, Chapter 8 Confidentiality and Chapter 9 Conflict of interest between clients

Hood Sailmakers Ltd v The Berthon Boat Company Ltd Independent, May 10, 1999

The court should not, of its own motion, investigate a possible conflict of interests on the part of solicitors acting for one of the parties. (Lawtel subscribers only.)

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Image Technical Services, Inc. v. Eastman Kodak Co., 820 F. Supp. 1212 (N.D. Cal. 1993)

When seeking a waiver, an attorney’s duty to disclose any representation adverse to the interests of its client could not be fulfilled by mentioning "in passing" participation in a brief contrary to the interests of the client without stating the details of why the interests are contrary. The failure fully to disclose the client’s exposure, as well as the extent of its participation in this action, fell short of the "undivided loyalty" it owed to its client. The details are essential to informed consent so that the client can weigh and measure the nature of the contrary interests and give informed consent based upon knowledge of material facts.

Ismail-Zai v The State Of Western Australia [2007] WASCA 150

Australian case considering ‘Getting to know you’ factors, referred to in American cases as ‘playbook conflicts’ will only rarely constitute confidential information.

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Julia Duncan v Stephen Duncan

[2013] CA (Civ Div) (Sullivan LJ, Ryger LJ, Macur LJ) 09/10/2013 Lawtel Subscribers only

There was no conflict of interest where a barrister acted on a wife's behalf in ancillary relief proceedings, having previously acted the husband in ancillary relief proceedings relating to his previous divorce. The husband was the author of his own misfortune in consenting to the barrister acting for the wife before the District Judge.

k

Koch Shipping v Richards Butler

[2002] EWCA Civ 1280

Lateral hire. Summary of the principles in Prince Jefri Bolkiah v. KPMG (A Firm) [1999] 2 AC 222. Successful appeal against order restraining solicitors from acting. Information barriers held to be sufficient.

l

Lord & Ors, R (On the Application Of) v Director of the Serious Fraud Office [2015] EWHC 865 (Admin)

The case deals with the application to SFO investigations of the ethics guidance published by the SRA (previously the Law Society), Employer's solicitors attending HSE interviews with employees

m

MacRoberts Llp v McCrindle Group Ltd [2016] ScotCS CSIH_27 (28 April 2016)

Scottish case: breach of the no-conflict duty by the solicitor was not regarded as a breach of an implied term in the contract for provision of legal services.

Mannesmann v Goldman Sachs

[1999] EWHC 837 (Ch)

Failed application to restrain Investment bank from advising on a possible hostile take-over on the basis that it allegedly held confidential information relating to the claimant. ‘[By] identifying the information at a public hearing of this application in its evidence and in the submissions of its Counsel, M has brought these pieces of information into the public arena: they are no longer private, but common knowledge. They can no long (if they ever could) found any claim to any relief.’

Marks & Spencer v Freshfields Bruckhaus Deringer

(Court of Appeal) [2004] EWCA Civ 741

Court of Appeal upheld order restraining solicitors from acting. See also first instance decision of Laurence Collins J below.

Marks & Spencer v Freshfields Bruckhaus Deringer (Laurence Collins J)

[2004] EWHC 1337 (Ch) Lawtel subscribers only

Order restraining solicitors from acting where there was a real risk of a conflict of interests and potential breach of confidential information arising from prior retainer, which could not be protected by information barriers. The conflict rules were not limited to ‘same transaction' cases. There simply had to be a reasonable or sufficient degree of relationship between the two matters. Solicitors could not wait to see if the takeover bid went hostile before deciding whether to act.

Mintel International Group Limited v Mintel (Australia) Pty Ltd [2000] FCA 1410

Australian case considering ‘Getting to know you’ factors, referred to in American cases as ‘playbook conflicts’ are not generally confidential information.

Moore v Grau

2014 N.H. Super. LEXIS 20 (N.H. Super. Ct. Dec. 15, 2014)

American case upholding privilege for in-house General Counsel with useful guidance for small firms.

Mortgage Express v Bowerman and Partners

[1996] 2 All ER 836 (Lawtel subscribers only)

Solicitor acting for lender and borrower was under a duty to disclose facts to the lender which cast doubt on the valuation on which the advance was being made.

Mothew (t/a Stapley & Co) v Bristol & West Building Society Respondent

[1996] EWCA Civ 533

Millett LJ described a fiduciary as "..someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he must not act for his own benefit or for the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations."

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Netherlands Bar Association - Code of Conduct of Advocates 1992

See Introduction, paragraphs 1.2 and 1.3, and Rule 7.

New York Rules of Professional Conduct

Dated: January 1, 2017. See Rules 1.7 to 1.12

Nikolay v Lush and others

[2010] SGHC 290
Singapore High Court decision discussing when matters are, or are not, ‘related’ in the context of acting against a former client.

Nishimatsu-Costain-China Harbour Joint Venture V. Ip Kwan & Co (A Firm)

[2000] HKCA 372; [2001] 1 HKLRD 84; [2000] 2 HKC 445; CACV 21/2000 (26 May 2000)

Hong Kong Court of Appeal decision on conflicts applied to insurance defence solicitors defending a claim on behalf of insurers and insured, while simultaneously representing the insurers on coverage.

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Oceanic v HIH

[1999] NSWSC 292 (1 April 1999)

Insurance litigation – solicitor acting for insurer and insured. Insurer denied coverage. Solicitor ceased acting for insured. Insured failed to obtain order restraining solicitor from continuing to act for insurer.

p

Paton v Rosesilver Group Corp

[2017] EWCA Civ 158

A buyer’s solicitor provided limited services to the seller but there was no breach of fiduciary duty nor of the double employment rule and the seller was taken to have given his informed consent. Clark Boyce v Mouat [1994] AC 428 applied.

PhotoCure ASA v Queen's University at Kingston

[2002] FCA 905

Information barriers held to provide sufficient protection to ensure there was no real risk to confidential information, applying the principles in Prince Jefri Bolkiah v. KPMG (A Firm) [1999] 2 AC 222.

Pradhan V Eastside Day Surgery Pty Ltd & Anor

[1999] SASC 256

Application to remove a liquidator on the ground that a lateral hire employee held confidential information.

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Quinn Direct Insurance Limited v The Law Society

[2010] EWCA Civ 805

Confidential, privileged information could not be provided to a law firm’s insurers without the client’s consent. ‘[The] privilege is that of his client and cannot be broken or waived without the client's consent. It may be that, if the client will not waive his privilege to enable proper disclosure to be made, the consequence of the resulting conflict of interest will be that the insurance is vitiated or the notification inadequate but that is the problem of the solicitor not the client.’

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Ratiu v David Conway

[2005] EWCA Civ 1302

Appeal dismissed against award of damages for libel. Solicitor held to be in breach of fiduciary duty to the person behind a limited company, lifting the corporate veil.

Regulating Conflicts of Interest in Global Law Firms: Peace in Our Time?

Fordham Law Review, Volume 80, Issue 6 (2012)

Article by Janine Griffiths-Baker and Nancy J. Moore on the problems of implementing conflicts policies in global law firms caused by differences between conflicts rules. The article compares the American Bar Association Model Rules of Professional Conduct and the SRA Code of Conduct 2011.

Richards v The Law Society (Solicitors' Regulation Authority)

[2009] EWHC 2087 (Admin) (10 July 2009)

Own interest conflict: a solicitor proposing either to buy property from or sell property to a client or even for a client is under a duty to cause the client to obtain independent advice.

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Santander Sec. LLC v. Gamache 2017 WL 1208066 (E.D. Pa. April 3, 2017)

American case in which it was held that a law firm’s knowledge of a former client’s “methods of negotiating settlements,” “litigation strategies,” and litigation “playbook” does not warrant disqualification, and does not preclude the firm from undertaking factually distinct representations adverse to them.

Sierra Fishing Company & Ors v Farran & Ors

[2015] EWHC 140 (Comm)

Own interest conflict – arbitrator.

Signature MD, Inc. v. MDVIP, Inc.

(C.D. Cal. Jan. 20, 2015)

Information barriers were found to be ineffective because they were only implemented two days after the second instruction (US case).

Singla v Stockler & Stockler Brunton

[2012] EWHC 1176 (Ch)

The solicitor’s duty of confidence to a liquidator was displaced where the liquidator had co-operated with a creditor to a high degree and the solicitor could therefore act for the creditor in subsequent proceedings against the liquidator. Consideration of joint retainer issues.

Spincode Pty Ltd v Look Software Pty Ltd

[2001] VSC 287

Solicitors restrained from acting against former clients, applying the principles in Prince Jefri Bolkiah v. KPMG (A Firm) [1999] 2 AC 222. See appeal link below.

Spincode Pty Ltd v Look Software Pty Ltd

[2001] VSCA 248

Appeal dismissed against order restraining solicitors from acting against former client.

SRA Consultation on changes to Code of Conduct

As part of a wider review of regulation, the SRA have proposed to retain the rule on conflicts of interests broadly in the current form provided by Chapter 3 of the SRA Code of Conduct 2011. See paragraphs 91-98 of ‘Our response to consultation: Looking to the Future - flexibility and public protection’ and Rule 6 in each of ‘Annex 2 - Code of Conduct for Solicitors’ and ‘Annex 3 - Code of Conduct for firms’.

SRA Ethics guidance - employer's solicitors attending HSE interviews with employees

Although referring to HSE interviews, it is considered to have wider application, including Serious Fraud Office and other prosecuting authorities’ investigations. (See Lord & Ors, R (On the Application Of) v Director of the Serious Fraud Office [2015] EWHC 865 (Admin))

SRA Research on lawyer-client relationships in large firm

Independence, representation and risk report October 2015 – independent research by Claire Coe Smith and Dr Steven Vaughan. The report includes a review of the impact of outside counsel guidelines on law firm independence.

SRA v Goldberg and White & Case no 11592-2016

Proceedings in the Solicitors Disciplinary Tribunal arising out of Georgian American Alloys Inc & others v White & Case LLP [2014] EWCH 94. Under an Agreed Outcome, the SDT imposed fines of £50,000 and costs of £12,500 on the partner and £250,000 and costs of £25,000 on the firm.

SRA v Harvie

Case No. 11257-2014

Solicitor fined £305,000 by the Solicitors Disciplinary Tribunal for an own interest conflict.

SRA v Norman

Case No. 11485-2016

It was not sufficient for a solicitor receiving loans from clients to advise those clients to obtain independent legal advice: they must in fact receive such advice, and if they refused to obtain it, the solicitor must refuse to accept the loans.

Strother v. 3464920 Canada Inc

[2007] 2 S.C.R. 177, 2007 SCC 24

Court ordered lawyer to disgorge profits for breach of fiduciary duty after lawyer took a financial interest in a second client in same line of business.

Surjit Kumar Singla v (1) William Stockler (2) Stockler Brunton (a firm)

[2012] EWHC 1176 (Ch)

Solicitor acted for the liquidator of a company in litigation funded by a creditor. Co-operation resulted in disclosure of confidential information between the two displacing the ordinary duty of confidence owed to the liquidator by the solicitor. The solicitor was permitted to continue acting for the creditor in subsequent proceedings against the liquidator.

Swindle v Harrison

[1997] EWCA Civ 1339

Breach of fiduciary duty claim – own interest conflict, need for independent advice

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TSB v Robert Irving & Burns

[2000] 2 All ER 826; [2000] PNLR 384 (Lawtel subscribers only)

Joint retainer - solicitors and counsel acting for insurers and insured – policy coverage issue, extent of waiver of privilege

Turner v Bromets Jackson Heath LLP & Ors

[2016] EW Misc B15 (CC)

Claimant failed in her claim against solicitors for alleged conflict of interest/failure to seek separate advice on a declaration of trust in cohabitation case. Limited retainer not extending to the merits of the previously agreed terms, though they were advantageous to the claimant in any event on the facts.
Decision addresses the conflicts provisions in the Law Society's Guide to Professsional Conduct of Solicitors, now replaced by the SRA Code of Conduct 2011.

v

Visa v First Data

241 F. Supp. 2d 1100 (N.D. Cal. 2003)

US case – Court refused to disqualify Heller Ehrman. The waiver contained full disclosure of the firm acting for Visa and that it would only act for First Data on condition it could continue to act for Visa in any future disputes. First Data was a ‘sophisticated user of legal services’ and capable of ‘understanding the full extent of what it waived’.

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W Ltd v M SDN BHD

[2016] EWHC 422

International arbitration case involving a challenge for apparent bias based on alleged conflict of interest. The arbitrator’s firm (but not the arbitrator) regularly advises an affiliate of the Defendant (but not the Defendant), a fact of which the arbitrator was unaware as the firm’s conflict check systems did not alert him to this, due to the way in which the acquisition of the affiliate by a client of the firm was named within the firm. The court declined to apply the International Bar Association Guidelines on Conflicts of Interest in International Arbitration 2014 at para.1.4 which identified this as a non-waivable conflict of interest.

W. Sugar Coop v Archer-Daniels-Midland Co

No. CV 11-3473 CBM MANX, 2015 WL 690306 at *14-16 (C.D.Cal. Feb. 13, 2015)

US case - Squire Patten Boggs disqualified following merger. The Court found that the advance waiver was ineffective as it ‘lacks specifity’, ‘purports to waive conflicts in any matter not substantially related indefinitely’, and ‘does not identify a potentially adverse client, the types of potential conflicts, or the nature of the representative matters.’

Waivers: Conflict Waivers that do not cure Conflicts

Georgetown Journal of Legal Ethics, Vol 28 No. 3, Summer 2015

Article by , Elena Postnikova reviewing examples of US conflicts waivers which have, and have not, been held to be effective. PDF Download $3.50 or Printed Copy $8.00

Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd [2017] EWHC 218 (TCC)

The court declined to prevent a defendant insurer from relying upon a fire expert who had carried out an initial investigation on behalf of the insurers and also provided assistance to the claimant insured in connection with a potential claim against another party. The expert had not received information confidential to the claimant, and in any event, as an expert witness, he had an overriding duty to the court.

Winters v Mishcon de Reya

[2008] EWHC 2419 (Ch)

Joint retainer - claimant, a former client, failed in application to prevent solicitors acting against him on the basis that information was confidential.

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Youlton v Charles Russell

[2010] EWHC 1032 (Ch)

Conflict between company and pension fund trustees.

Young and Irby v. Robson Rhodes and Attwood

[1999] EWHC Ch 242 (30th March, 1999)

Accountants – claimant’s unsuccessful application to prevent merger due to conflict, order making provision for information barriers.

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Z, Re

[2009] EWHC 3621 (Fam)

Husband’s successful application for an order restraining his wife’s solicitors from acting when a partner had previously acted for him while at another firm. Application of principles in Prince Jefri Bolkiah v. KPMG (A Firm) [1999] 2 AC 222.

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