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.
A v B [2020] EWHC 809 (TCC)
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. The decision was upheld on other grounds in Secretariat Consulting PTE Ltd & Others v A Company [2021] EWCA Civ 6
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.
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
Acupay System LLC v Stephenson Harwood LLP [2021] EWHC B11 (Costs)
Insofar as negotiating and entering into a conditional funding agreement (CFA) part way through an engagement represented a potential conflict of interest between the claimant and the solicitors, then any breach of fiduciary duty on the solicitors’ part could be avoided by ensuring the claimant's fully informed consent to the new retainer arrangements. The solicitors reminded the claimant that it could take independent advice, but the claimant did not do so because their representative , being aware of that option, chose not to.
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.
Westlaw subscribers only
Al-Subaihi & Anor v Al-Sanea [2021] EWHC 2609 (Comm)
Analysis of solicitors’ fiduciary duties when negotiating their retainer. (See paragraphs 151 – 160.)
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 Formal Opinion 480
Confidentiality Obligations for Lawyer Blogging and Other Public Commentary.
American Bar Association Formal Opinion 492
Obligations to Prospective Clients: Confidentiality, Conflicts and “Significantly Harmful” Information
American Bar Association Formal Opinion, ABA Op. 479
The “Generally Known” Exception to Former-Client Confidentiality.
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.
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.
Bank of London Group Ltd v Simmons & Simmons LLP [2022] EWHC 2617 (Ch)
The court declined to order an injunction restraining solicitors from acting after a human error in relation to the firm’s conflicts procedures, holding that an effective information barrier was established as soon as practicable and there is no real risk of leakage of confidential information.
Bar Standards Board Handbook
See Rule C21
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.
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.
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.
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
Burns v The Financial Conduct Authority [2017] EWCA Civ 2140
Discussion of what constitutes a potential conflict of interest.
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.
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.
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 Westlaw subscribers only
Solicitor acting for two parties in a transaction with informed consent – limited retainer
Client relationships have limited shelf life
Ethics article by Diane Karpman considering ‘playbook’ conflicts and Khani v. Ford Motor Company, et al., No. B239611, Cal.App.4th (2d Dist. Apr. 25, 2013)
Code of Conduct for Firms 2019
For rules on conflicts of interest and confidentiality please see rule 6
Code of Conduct for Solicitors, RELs and RFLs 2019
For rules on conflicts of interest and confidentiality please see rule 6
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’
Cutlers Holdings Ltd & Anor v Shepherd And Wedderburn LLP [2023] EWHC 720 (Ch)
The judgment addresses when solicitors are under a duty to advise on own interest conflicts.
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.
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)
Dirksing v Safeco Insurance Company of Illinois No 5:20-cv-263-JMH (22 June 2021)
Another US case involving insurance defence lawyers on ‘playbook’ conflicts and the question of whether a prior instruction by an insurer to a lateral hire lawyer at her previous firm was ‘substantially related’ for disqualification purposes. It was held that she had become uniquely familiar with the types of litigation strategies and tactics the insurer employs when handling claims involving underinsured motorist coverage.
DQED: The Lawyer Disqualification Blog
Blog by Keith Swisher, Associate Professor of Law at Arizona Summit Law School, about disqualification in litigation.
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)
(Westlaw 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.
F&C Alternative Investments (Holdings) Ltd v Barthelemy & Anor [2011] EWHC 1731 (Ch) (14 July 2011)
Members of a limited liability partnership owed no statutory fiduciary duties to each other: the only duties were those expressed contractually. See in particular the analysis at para. 227of fiduciary duties and informed consent derived by the knowledge of all parties from the outset that the Defendants would have a personal financial interest in the LLP and the business decisions taken by it.
Falk Pharma GMBH v. Generico, LLC 2019 WL 692670 (Fed. Cir. Feb. 20, 2019)
The court disqualified lawyers from acting against a client’s ‘affiliates’.
Farrar & Anor v Miller [2022] EWCA Civ 295
Solicitors took an assignment of a Damages Based Agreement (DBA) for costs. This gave rise to an own interest conflict and was void on grounds of champerty.
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.
(Westlaw subscribers only)
Forster v Reynolds Porter Chamberlain LLP [2023] EWHC 1150 (Ch)
Own interest conflict arising from Conditional Funding Agreement (CFA); under the terms of the ‘no win no fee agreement’, a provision giving solicitors certain rights where there was a disagreement with the client over an offer settling a claim did not apply to enforcement of the settlement. There was a client conflict in acting for lender and borrower in relation to a disbursement funding agreement.
France v Freemans Solicitors
[2010] EWHC 3291 (QB)
Freivogel on Conflicts
A Guide to Conflicts of Interest for Lawyers (USA)
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.
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.
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 prevented 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.
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.
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.
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.
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.
Halliburton Company v Chubb Bermuda Insurance Ltd & Ors [2018] EWCA Civ 817
The Court of Appeal refused to set aside the appointment of an arbitrator who failed to disclose later, related appointments, holding that he should have disclosed them but a fair-minded and informed observer would not conclude that there was a real possibility that the arbitrator was biased.
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. (Westlaw subscribers only.)
Howell Jones LLP: SRA Guidance Putting matters right when things go wrong, and own interest conflicts
Guidance following the decision in Howell Jones LLP (11846-2018)
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.
Ireland, Guide to Professional Conduct of Solicitors in, Fourth Edition
See Chapter 3, Conflict of Interest,
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.
Italy Code of Conduct for Italian Lawyers
Italian Bar Rules (see Article 24)
Jaskula v. Dybka, 2017 IL App (1st) 160014-U (Ill. App. Unpub. March 23, 2017)
Meaning of “Substantially Related Matters”
JK v MK & Anor [2020] EWFC 2
Joint instruction of solicitors for certain purposes in matrimonial cases may not breach conflict rules.
Julia Duncan v Stephen Duncan
[2013] CA (Civ Div) (Sullivan LJ, Ryger LJ, Macur LJ) 09/10/2013 Westlaw 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.
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.
Lawtel Subscribers only
Khani v. Ford Motor Company
No. B239611, Cal.App.4th (2d Dist. Apr. 25, 2013)
‘Playbook’ conflicts case (US)
KITCHIN v. BRIDGETON LAND No. 4:18 CV 672 CDP
US decision on whether two separate matters were ‘related’: ‘While the 2013 representation did not involve the same transactions, witnesses, or causes of action as in this litigation, it nevertheless exposed Clayborne to and brought him into defendants' intimate negotiation strategies based in part upon the Landfill's leachate disposal systems in place at the time’.
KKL Executor & Trustee Company Ltd v Harrison [2020] EWCOP 25 (01 May 2020)
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.
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.
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…’
Law Society of Singapore v Ezekiel Peter Latimer [2019] SGHC 92
Decision of the High Court of Singapore on the relevant factors to apply in sentencing following a finding of conflicts of interest. The Court considered and applied the Solicitors Disciplinary Tribunal (England & Wales) Guidance Note on Sanctions, 6th edition (superseded, but not affecting the factors considered in this decision).
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
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.’
Margetak v Hughes, 2022 ABPC 91
Canadian decision rejecting a husband’s application to disqualify a law firm acting for a wife in matrimonial proceedings, having failed to prove that the firm had acquired confidential information relating to his finances when acting for his previous wife.
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) Westlaw 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.
Merricks v Mastercard Incorporated & Ors [2017] CAT 16
The Competition Appeals Tribunal held that there was no potential conflict of interests arising from the costs funding arrangement in an application for a collective proceedings order, in an action brought on behalf of a class of 46.2 million people, under sect 47B of the Competition Act 1998.
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 (Westlaw 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."
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.
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
Newcastle International Airport Ltd v Eversheds LLP [2013] EWCA Civ 1514
Solicitors acted for the Airport in relation to new service contracts between the Airport and executive directors but took instructions from the executive directors who had an interest in obtaining the best possible terms under the new contracts. The Court of Appeal held that there was an obvious conflict of interest between the parties to each contract.
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.
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.
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.
Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272
US case in which the concurring opinion of Low, P.J. at 293-294 explains why objection may be taken to the term “Chinese wall” when referring to an information barrier or ethical screen.
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.
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.
Plein v. USAA Cas. Ins. Co., No. 97563-9 (Wash. May 21, 2020.)
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.
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.
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.
Public Guardian, The v AW & Anor (Application to revoke Lasting Power of Attorney) [2014] EWCOP 28
Lasting Power of Attorney (LPA) – requirement to seek approval of the Court of Protection under section 23 of the Mental Capacity Act 2005 where there is a conflict between the interests of the donor and the interests of the attorney.
Public Guardian, The v C [2013] EWCOP 2965
Lasting Power of Attorney (LPA) – requirement to seek approval of the Court of Protection under section 23 of the Mental Capacity Act 2005 where there is a conflict between the interests of the donor and the interests of the attorney.
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.’
Rakusen v. Ellis, Munday and Clarke [1912] 1 Ch. 831
There is no absolute rule of law in England that a solicitor may not act in litigation against a former client. A solicitor may be restrained from acting if such a restriction is necessary to avoid a significant risk of the disclosure or misuse of confidential information belonging to the former client. An injunction was refused even though this was only a two partner firm.
Ramsook v Crossley (Trinidad and Tobago) [2018] UKPC 9
The Privy Council, citing Groom v Crocker [1939] 1 KB 194, held that a clause in an insurance policy did not provide carte blanche to insurers to conduct proceedings in their own interests, without regard to reality or to their insured’s account of events or to the fact that here the claim was likely severely to affect their insured.
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.
Réglement Intérieur National de la profession d'avocat - RIN | Conseil national des barreaux
French Bar Rules (see rule 4)
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.
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.
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.
RICS Rules of Conduct 2021
In effect from 2 February 2022. See Rule 1.
S -v- S (Application to Prevent Solicitor Acting) [2017] EWHC 2660 (Fam)
Failed application by potential client following a meeting set up for the purpose of conflicting the solicitor out of acting for his wife in divorce proceedings.
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.
Scotland - Law Society of Scotland consultation on proposed changes to practice rules on conflict of interest
Law Society of Scotland consultation on proposed changes to practice rules on conflict of interest
Scotland - Law Society Rules and Guidance
See Rule B2.
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.
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.
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.
Skjevesland v Geveran Trading Co Ltd [2002] EWCA Civ 1567
Failed attempt to remove opponent’s counsel on grounds of confidential information said to have been acquired socially.
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 Code of Conduct 2011 Chapter 3 Conflicts of interest
In force from 6 October 2011 until 24 November 2019.
SRA Code of Conduct 2011 Chapter 4 Confidentiality
In force from 6 October 2011 until 24 November 2019.
SRA Code of Conduct for Firms 2019
For rules on conflicts of interest and confidentiality please see rule 6
SRA Code of Conduct for Solicitors, RELs and RFLs 2019
For rules on conflicts of interest and confidentiality please see rule 6
SRA Consultation on changes to Code of Conduct
Consultation prior to introduction of 2019 Codes of Conduct. 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 Consultation on new Code of Conduct
1st June 2016
SRA Ethics guidance: Unregulated organisations - Conflict and confidentiality
This guidance relates to the SRA Standards and Regulations, effective from 25 November 2019 and applies to solicitors employed in unregulated organisations.
SRA Guidance Putting matters right when things go wrong, and own interest conflicts
Guidance following the decision in Howell Jones LLP (11846-2018)
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 Gupta 11832-2018
Own interest conflict in relation to family member and client conflict. Fined £45,000 plus £23,500 costs
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.
SRA v Beach 11761-2017
Own interest conflict - gifts under wills
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.
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 Harbord 11614-2017
Proceedings in the Solicitors Disciplinary Tribunal in which it was held that there was a ‘clear risk of conflict of interest’ where the solicitor was in a personal, intimate relationship with a client for whom he had acted in matrimonial proceedings. The Tribunal noted that the Respondent had sought advice from the SRA’s Ethics Advice Line on two occasions as to his position, and that the response was at best opaque.
SRA v Harvie
Case No. 11257-2014
Solicitor fined £305,000 by the Solicitors Disciplinary Tribunal for an own interest conflict.
SRA v Howell Jones LLP
Case No. 11846-2018
Agreed outcome on allegation of own interest conflict while acting for client after admitting a mistake which may entitle the client to bring a negligence claim.
SRA v Hutchins and McGuire 12396-2022
Own interest conflict arising from preferment of the interests of the respondents wives in a cleaning company, over the interests of trust clients and the residuary beneficiary of a trust by causing or permitting payments to be made to the company for services rendered. The SDT imposed sanctions of a 2 year suspension and £15,000 fine respectively.
SRA v Madderson
Agreed outcome - £8000 fine plus £4000 costs – client conflict, acting for elderly seller and buyer in sale at an undervalue, following a successful High Court challenge to the transaction in Moursi v Doherty, 2019 WL 01518202 (2019)
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.)
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.
SRA v Otto 12073-2020
The judgment includes findings, unusually, of a conflict between a current and a former client. Note that reliance was placed on the SRA’s Ethics Guidance issued on 23 July 2019 headed “Unregulated Organisations – conflict and confidentiality” (even though the respondent was a sole practitioner and not in an unregulated organisation), particularly in relation to the use of limited retainers.
Fine £10,000 for this and other breaches, plus costs of £29,000.
SRA v Roberts 11970-2019
Solicitor acted for developer in connection with the sale of units in a buyer-funded development while also acting as the sole director and holding funds on behalf of the buyers’ company. Fine £10,000 plus £40,000 costs.
SRA v Sleigh Son & Booth
Case No. 11811-2018
Failure to maintain record of informed consent when acting for seller, buyer and lender in conveyancing transactions and also as selling agent through its estate agency business.
SRA v Stephen Andrew Alexander and Spicketts Battrick Law Practice
Case No. 11635-2017
Disciplinary action against a matrimonial solicitor who disclosed to his client the address of the property being purchased by his client's ex-wife for whom the firm's conveyancing department was acting. Under an agreed outcome, the solicitor was fined £15,000 and the firm £20,000, with costs of £7,000.
SRA v Tompkins and Hodders Law 12178-2021
Own interest conflict, failing to advise client of an error which may give rise to grounds for a claim. The SDT approved an agreed outcome under which the first respondent was fined £5,000 and the firm was fined £11,000, representing 0.4% of its most recently reported annual turnover. The respondents also agreed to pay £17,400 costs.
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.
Strother v. Law Society of British Columbia [2018] BCJ No 6982, 2018 BCCA 481
Court of Appeal of British Columbia upholding a finding by a Law Society panel that a lawyer was guilty of professional misconduct for failing to disclose a conflict of interests.
SuperCooler Technologies, Inc. v. The Coca Cola Company 6:23-cv-00187-CEM-RMN
A broad prospective waiver gave sufficiently specific detail to permit a law firm to act in litigation, including allegations of fraud, against a sophisticated client.
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.
Swedish Bar Association Code of Conduct (2008)
See rules 3.2 to 3.5
Swindle v Harrison
[1997] EWCA Civ 1339
Breach of fiduciary duty claim – own interest conflict, need for independent advice
Teva Pharm. USA, Inc. v. Impax Labs., Inc., 2018 WL 5771542 (Pa. App. Nov. 2, 2018)
American decision applying “substantial relationship” test to former client conflict in intellectual property case.
TSB v Robert Irving & Burns
[2000] 2 All ER 826; [2000] PNLR 384 (Westlaw 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.
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’.
Vorobiev Nikolay v Lush John Frederick Peters [2010] SGHC 290
Decision of the High Court of Singapore holding that a court may take into account in applying [the substantially related matter] test, for example, the solicitor’s knowledge of the disposition of the former client which is neither confidential information nor information which is directly relevant to the subject-matter of the later matter’ and may therefore take into account the ‘larger public interest … and that is the solicitor-client relationship of trust and public confidence in the integrity of the legal profession’.
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.’
Western Avenue Properties Ltd & Anor v Soni & Anor [2017] EWHC 2650 (QB)
Injunction granted restraining a solicitor from acting against her former employer, applying Bolkiah v KPMG [1999] 2 AC 222 and Georgian American Alloys Inc v White and Case LLP [2014] EWCH 94
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.
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.
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.
