The SRA has updated its guidance on Conflicts of Interest. As ever, there are regrettably no easy ways to spot the changes. The guidance adds references to the distinction between
current and former clients, and same or related matters.
Own interest conflicts continue to be problematic. Our January issue addressed some of the difficulties posed by the SRA’s guidance, Putting matters right when things go wrong, and own interest conflicts, and the decision in SRA v Howell Jones LLP Case No. 11846-2018. A key point is that the solicitors in that case did ensure that the client received independent legal advice, contrary to the SRA’s assertion, by instructing counsel. Under the Bar Standards Board Code of Conduct, a barrister’s duty to act in the best interests of each client includes a duty to consider whether the client’s best interests are served by different legal representation, including, if necessary, different solicitors, and if so, to advise the client to that effect and to advise if their solicitor has been negligent.
Further issues on own interest conflicts arise when a solicitor deputy appointed by the Court of Protection wishes to use the services of their own firm, or an associated company for investment advice. A procedure for addressing this was set out in ACC & Others [2020] EWCOP 9. (See paragraphs 38-42 and 56 in particular.) The procedure should be read in full, but it is notable, in the light of our comment on the Howell-Jones case above, that it includes provision for a separate partner to instruct counsel of five years’ standing to advise. However, that is stated to apply ‘in relation to a settlement of £1 million or more’ – but if there is a conflict, there is a conflict, and there is no lower financial limit.
This all begs the question of whether the absolute bar on acting contained in paragraph 6.2 of each of the SRA Codes of Conduct may need some refinement, not just guidance. Links to the above can be found on www.legalrisk.co.uk/news and our conflicts resource page, www.legalrisk.co.uk/conflicts.
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