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Latest on risk management, professional indemnity and compliance issues.
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March 21, 2024
ABA Formal Opinion 510, Avoiding the Imputation of a Conflict of Interest When a Law Firm is Adverse to One of its Lawyer’s Prospective Clients
This ethics opinion addresses the issue of whether a law firm can act for a client when confidential information has been provided by another prospective client who does not proceed to instruct the firm.
See here.
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March 20, 2024
Irwin Mitchell Trust Corporation v PW & Anor [2024] EWCOP 16
A trust corporation appointed as property and affairs deputy and which was owned by solicitors had an own interest conflict when it appointed an asset management company in the same group to manage the investments.
See here.
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January 15, 2024
New York Bar Formal Opinion 2024-1: Ethical Issues Arising from the Representation of Two or More Bidders Competing for the Same Asset
See here.
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July 31, 2023
Law Society Practice note – Conflict of interests (updated 27 July 2023)
See here.
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May 23, 2022
DC Bar – Ethics Opinion 383 – Disclosure of Client Confidences or Secrets in Compliance With the Outside Counsel Guidelines of Another Client; Advance Agreement to Withdraw from Representation in the Event of a “Midstream” Conflict
The Opinion contains a reminder that, in the absence of informed consent, (1) the D.C. Rules prohibit disclosure of a client’s protected information in connection with such a request or commitment, and (2) agreeing to make such a disclosure or intentionally requesting such information may constitute a violation of the Rules even if no disclosure ultimately is made.
See here.
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April 29, 2022
Revolaze, L.L.C. v. Dentons US L.L.P., 2022-Ohio-1392
US conflicts case holding that US and Canadian members of a verein were to be treated as a single law firm for conflict purposes. A decision of the Ohio Court of Appeals, Eighth District, arising from a patent infringement case involving use of laser abrading technology to create the worn and faded look on new jeans and other denim garments, instead of the traditional sandblasting or hand sanding (which carried the risk of silicosis, which may result in death). The judgment also provides an interesting insight into litigation funding.
See here.
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October 21, 2021
Law Society Practice Note on Conflict of Interests – updated
See here.
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October 18, 2021
Al-Subaihi & Anor v Al-Sanea [2021] EWHC 2609 (Comm)
Analysis of solicitors’ fiduciary duties when negotiating their retainer. (See paragraphs 151 – 160.)
See here.
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October 12, 2021
Lakatamia Shipping Co Ltd v Su & Ors [2021] EWHC 2702 (Comm)
A review of the authorities on the wasted costs jurisdiction pursuant to s.51(6) of the Senior Courts Act 1981, including a reminder (of wider application) that ‘a solicitor has a regulatory and legal duty to uphold any arguable rights of legal professional privilege the client … may have’ and ‘the significant risk of own interest conflict…means a solicitor cannot advise his client on either (i) whether rights of privilege subsist, or (ii) whether to waive any rights of privilege that do subsist. It is therefore necessary to advise the client to obtain independent legal advice…’
See here.
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July 23, 2021
Barrowfen Properties Ltd v Patel & Others [2021] EWHC 2055 (Ch)
Solicitors’ breach of the “no inhibition” principle and allowing themselves to be inhibited by their loyalty to one of their clients did not, on the facts, lead to finding of breach of fiduciary duty but did lead to a finding of negligence.
See here.
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July 22, 2021
Tripipatkul v WH Lawrence Ltd (t/a WH Lawrence Solicitors) [2021] EWHC B13 (Costs)
Decision setting aside a contentious business agreement, on the basis that its terms were unreasonable, under section 61 of the Solicitors Act 1974, a provision on which there is little authority.
See here.
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January 12, 2021
Secretariat Consulting PTE Ltd & Others v A Company [2021] EWCA Civ 6
Conflicts of interest and expert witnesses: Decision in A v B [2020] EWHC 809 (TCC) upheld on different grounds. Although an expert may owe fiduciary duties, including a duty of loyalty and a duty to avoid conflicts of interest, the contractual terms of appointment contained express provisions on conflicts which were breached on the facts. The decision also reviews issues involving associated companies and contains a review of cases on solicitors’ conflicts of interest.
See here.
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October 12, 2020
Conflicts: American Bar Association Formal Opinion 494 on Conflicts Arising Out of a Lawyer’s Personal Relationship with Opposing Counsel
See here.
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June 10, 2020
American Bar Association Formal Opinion 492
American Bar Association Formal Opinion 492, Obligations to Prospective Clients: Confidentiality, Conflicts and “Significantly Harmful”. See here.
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June 02, 2020
Conflicts of interest: SRA v Mawbey-Shaw and Law Offices UK Ltd
Judgment on an agreed outcome: Allegation 3 against the respondent solicitor was that he acted for buyer and sellers in multiple conveyancing transactions. The buyer was a company in the business of purchasing private property via quick sales at discount prices. According to the First Respondent, the properties in question were usually “blighted” in some way (e.g. defective title; adverse surveyor’s report), or a quick sale was needed or desired (e.g. because it was a probate property). The discount was typically in the region of 30% on the market value. (The first part of the agreed outcome concerns an unrelated allegation relating to investment schemes.)
See here.
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June 01, 2020
KKL Executor & Trustee Company Ltd v Harrison [2020] EWCOP 25 (01 May 2020)
Conflicts of interest: Contested Court of Protection application for appointment of a Deputy. The court addressed the fact that the solicitor applicant would charge for her services and instruct her own firm in relation to legal proceedings, creating a possible conflict of interest but considered that this was manageable under a well-established process and is a regular and accepted part of Court of Protection proceedings. See here.
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May 26, 2020
Plein v. USAA Cas. Ins. Co., No. 97563-9 (Wash. May 21, 2020.)
Conflicts: Another US case involving insurance defence lawyers on ‘playbook’ conflicts and the question of whether a prior instruction was ‘substantially related’; for disqualification, the prior matter had to involve confidential factual information. See here.
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May 08, 2020
Glencairn IP Holdings Ltd & Anor v Product Specialities Inc & Ors [2020] EWCA Civ 609
Confidential information: Unsuccessful appeal against an order refusing to restrain solicitors from acting for a defendant where, in earlier similar litigation, the same firm has acted for another defendant against the same claimant in litigation which had been settled through a mediation and confidential settlement. The critical question was whether the information barrier put in place worked, which is a question of fact, in relation to which the burden of proof to show that it did not work was on the applicant. The proposition of law identified in Bolkiah, that an information barrier has to be part of the structure of the firm, did not apply as the solicitors were not in a fiduciary relationship with the applicant. Even though the case involved a small firm of solicitors, the information barrier was effective.
See here.
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May 07, 2020
Persichette v. Owners Ins. Co., No. 19SA188 (Col. May 4, 2020)
American ‘playbook conflicts’ decision on application to disqualify lawyers from acting against their former insurance clients on the basis that they possessed confidential information, such as policies and procedures and litigation strategy, in ‘substantially related’ matters.
See here.
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April 14, 2020
A v B [2020] EWHC 809 (TCC)
Conflicts of interest: An expert witness owes a fiduciary obligation of loyalty which is not satisfied simply by putting in place information barriers to preserve confidentiality and privilege. Such a fiduciary must not place himself in a position where his duty and his interest may conflict. See here.
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March 18, 2020
ACC & Ors ( property and affairs deputy ; recovering assets costs for legal proceedings) [2020] EWCOP 9
Own interest conflicts – Court of Protection appointed Deputies. The issues which arise on Deputies instructing their own firms on behalf of patients are addressed in paragraphs 39-42 and 56.
See here.
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March 06, 2020
SRA updated guidance on Conflicts of interest, adding references to the distinction between current and former clients and same or related matters
See here.
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February 03, 2020
A & E Investments Inc., Robert Kidd v Levy & McRae Solicitors LLP, Jonathan Brown
Scottish decision holding that a success fee gave rise to a conflict of interests.
See here.
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August 02, 2019
Plein v. USAA Casualty Insurance Company, 2019 WL 3407107
‘Playbook conflicts’ arise when a lawyer has knowledge of a client’s approach to strategy: is that alone confidential information on the same or a related matter, such as to prevent the lawyer acting against the client? This was a decision of the Washington State (USA) Court of Appeals on the meaning of ‘substantially related’ in relation to a former client conflict, based on the ‘legal strategies and defenses developed between USAA’ and the law firm in many previous cases. The court, reversing the lower court, disqualified the lawyers from acting.
See here.
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December 17, 2019
Preparing a will when your client is leaving a gift for you, your family or colleagues – The Law Society
Law Society Practice Note (subscriber access) – Preparing a will when your client is leaving a gift for you, your family or colleagues – own interest conflicts of interests.
See here.
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July 31, 2019
SRA v Evans and Whiteley 11907-2018
Own interest conflict – judgment on an agreed outcome. The respondents acted for clients on the sale of property to a company in which they had a financial interest. They advised the clients to seek separate advice but failed to ensure that they did in fact do so. The respondents were each fined £10,000 plus £25,000 costs, and undertook not to apply for practising certificates for two years.
See here.
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November 28, 2019
Conflicts of interest – New SRA guidance (25 November 2019)
See here.
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July 08, 2019
Glencairn IP Holdings Ltd & Anor v Product Specialities Inc (t/a Final Touch) & Anor [2019] EWHC 1733 (IPEC)
Confidentiality and information barriers: Applying Bolkiah v KMPG, the court declined to grant an order restraining a small two office firm from acting even though there was little detailed evidence on how the information barrier worked.
See here.
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November 27, 2019
SRA | Putting matters right when things go wrong, and own interest conflicts | Solicitors Regulation Authority
See here.
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November 13, 2019
GCT Canada Limited Partnership v. Vancouver Fraser Port Authority, 2019 FC 1147
The Canadian court disqualified solicitors from acting. Although they had not acted for the applicant, they had been privy to its confidential information in the course of undertaking a due diligence for another client in connection with a potential acquisition of a minority interest in the applicant.
See here.
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June 25, 2019
FBME Bank Ltd v Dangate Consulting Ltd [2018] EWHC 546 (Comm)
Defendants’ unsuccessful application for an order that the Second and Third Claimants’ solicitors cease acting due to an alleged conflict with the First Claimant. Unless the Court is given cogent evidence of a conflict, it should and does trust solicitors to police their own professional obligations. In any event, the Court does not have the means to look into privileged communications as the SRA would do if, after a full trial, the trial judge thought that there was something meriting the regulator’s attention. If any conflict did arise, though one was not found, on the facts it would have been historic, because the solicitors were no longer acting for the First Claimant.
Note: the Court of Appeal decision in Hood Sailmakers Ltd v The Berthon Boat Company Ltd (Independent, May 10, 1999) was not cited. See link here.
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October 31, 2019
SRA Guidance on Conflicts of Interest (effective from 25 November 2019)
However this does not address own interest conflict issues arising from the decision in SRA v Howell Jones LLP Case No. 11846-2018 which will be addressed in further guidance on Putting Things Right.
See here.
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June 10, 2019
SRA v Adams and Rich 2018-11891
Conflict allegation dismissed where one partner acted for a man convicted of causing death by dangerous driving and another partner acted for the victim’s estate in a claim against the driver which was settled by the driver’s insurers. Reprimand for the first respondent’s failure to carry out a conflict search.
See here.
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May 29, 2019
Bhatti v Asghar [2019] EWHC B5
Decision on the question of a solicitor’s own interest conflict where a costs budget has not been filed and costs are limited to the court fees and compares the factual matrix with the position in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537.
See here.
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April 12, 2019
Murray v Turcan Connell [2019] CSOH 21
Scottish decision in matrimonial proceedings restraining solicitors from acting for husband after lateral hire of solicitor who had acted for the wife while at his previous firm. In applying Bolkiah v KPMG, and assessing whether there was a risk to confidential information, the court noted that despite a culture of confidentiality in the firm, there was a risk of inadvertent disclosure: the file contained three documents from an unrelated client’s file, and some confidential information had been disclosed without consent in an affidavit; there was also inadequate explanation of the systems limiting access to electronic files and what controls were in place, and ad hoc procedures were unlikely to suffice.
See here.
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August 02, 2019
Plein v. USAA Casualty Insurance Company, 2019 WL 3407107
‘Playbook conflicts’ arise when a lawyer has knowledge of a client’s approach to strategy: is that alone confidential information on the same or a related matter, such as to prevent the lawyer acting against the client? This was a decision of the Washington State (USA) Court of Appeals on the meaning of ‘substantially related’ in relation to a former client conflict, based on the ‘legal strategies and defenses developed between USAA’ and the law firm in many previous cases. The court, reversing the lower court, disqualified the lawyers from acting.
See here.
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August 31, 2018
Sheppard, Mullin, Richter & Hampton v. J-M Manufacturing No. S232946 (Cal. Aug. 30, 2018)
Decision of the Californian Supreme Court holding advance conflicts waiver ineffective.
See here.
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February 07, 2018
California – State Bar of California’s Conflict of Interest Code for Designated Employees, Proposed Revisions
Proposed Formal Opinion Interim No. 12-0005 (Seeking Advice About Current Clients) – considers what ethical obligations arise when lawyers in a law firm consult with external or in-house counsel on an ethical issue or a possible error by the law firm.
See here.
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January 23, 2018
Scotland – Law Society of Scotland consultation on proposed changes to practice rules on conflict of interest
See here.
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January 19, 2018
Keeling v Keeling [2017] EWHC 1189 (Ch)
Executorship: A person who is asserting a claim which is adverse to an estate should not take out a grant of representation, as a personal representative is in a fiduciary position. If a law firm knows of the claim, it should advise the person.
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See here.