Ethics and Professional Conduct

What duty does a solicitor owe to former clients when asked to act for a new client with potentially adverse interests?

Duty of confidentiality to former clients (SRA Code of Conduct, para 6.3).

If solicitor holds information that might be material and adverse to the former client, cannot act unless:

Effective safeguards ensure no real risk of disclosure, or

Former client gives informed consent (para 6.5).

In the case where a solicitor advised a company (no longer a client) and is later asked by a director/shareholder to advise on her departure and severance package, can the solicitor act?

Not without safeguards. The solicitor likely holds material confidential info from the former client (the company). Acting for the director in negotiations would be adverse to the company’s interests. Under para 6.5, the firm may only act if:

No real risk of disclosure (effective information barriers), or

The company (former client) gives informed consent.

Can a solicitor act personally for two clients competing for the same contract/tender?

General rule: conflict of interest (SRA Code, para 6.2).

Exception: if clients are “competing for the same objective” (para 6.2(b)), solicitor may act if effective safeguards are in place.

But one solicitor personally cannot realistically safeguard confidential info between the two.

Why can’t an individual solicitor rely on the “competing for the same objective” exception?

Acting personally means solicitor has knowledge of both clients’ confidential information.

Cannot realistically separate/confidentiality-ringfence information in their own mind.

Clients almost certainly want to keep information from each other.

Therefore, safeguards required under para 6.2(b) cannot be met.

When might the “competing for the same objective” exception work in practice?

Where a firm acts for multiple clients via separate lawyers or teams, with effective information barriers in place.

Prevents cross-transmission of confidential information.

Does a solicitor create a conflict of interest by giving general legal advice to one director of a company client (e.g. directors’ obligations on insolvency)?

No. General advice on the law (not personal legal advice) is not specific to that director’s individual position. Same advice would apply to all directors. Therefore, no conflict arises.

Can a solicitor act for an employee seeking advice on a compromise agreement when the employee works for one of the solicitor’s existing employer clients?

Unlikely. Acting would create a significant risk of conflict of interest, because:

• The solicitor owes duties to the current employer client to act in its best interests.

• The employee (potential new client) has different objectives regarding the compromise agreement.

• Separate duties could conflict, making it difficult to act in the best interests of both.
  🔹 SRA Code of Conduct (para 6.3) – conflicts of interest
  🔹 SRA Principle 7 – act in the best interests of each client

What is the key factor that creates a conflict of interest when a solicitor considers acting for an employee of an existing employer client?

• Differing objectives of the existing client and new client.

• Risk that duties owed to one client (best interests) conflict with duties owed to the other.

• Even if both clients consent, the risk may be too significant to act safely.
  🔹 SRA Code of Conduct (para 6.3) – conflicts of interest
  🔹 SRA Principle 7 – act in the best interests of each client

Can a trainee solicitor give an undertaking to the court to produce an original document the next day if she is unsure she can produce it?

No. A solicitor should not give an undertaking unless they are certain they can comply. Breach of an undertaking is contempt of court and may be reported to the SRA. She should only commit to producing the document when she is confident it can be done.
🔹 SRA Principle 1 – uphold the rule of law and act in the administration of justice
🔹 SRA Principle 2 – act with integrity
🔹 SRA Code of Conduct (para 1.2) – avoid misleading the court

Why must a solicitor or trainee only give an undertaking to the court if they are sure they can comply?

• Undertakings are binding promises to the court.

• Failure to comply = contempt of court.

• Giving an undertaking without certainty risks misleading the court and SRA sanctions.
  🔹 SRA Principle 1 – uphold the rule of law and act in the administration of justice
  🔹 SRA Principle 2 – act with integrity
  🔹 SRA Code of Conduct (para 1.2) – avoid misleading the court

What is the trainee’s professional conduct position if an oral undertaking cannot be fulfilled by the agreed time?

• The trainee is in breach of the undertaking.

• Any ambiguity about an undertaking is resolved in favour of the recipient (buyer’s solicitor).

• Breach can lead to disciplinary action and professional liability.
  🔹 SRA Principle 1 – uphold the rule of law and act in the administration of justice
  🔹 SRA Principle 2 – act with integrity
  🔹 SRA Code of Conduct (para 1.2) – avoid misleading the other party

In a personal injury trial, can a solicitor selectively rely only on case law that supports the client’s claim?

No. The solicitor must draw the court’s attention to all case law likely to have a material effect on the proceedings, including cases adverse to the client.

• Duty to client (SRA Principle 7) is overridden by duty to the administration of justice (SRA Principle 1) when there is a conflict.
  🔹 SRA Principle 1 – uphold the rule of law and act in the administration of justice
  🔹 SRA Principle 7 – act in the best interests of each client
  🔹 SRA Code of Conduct (para 2.7) – must not mislead or withhold material information from the court

Why must a solicitor disclose case law that adversely affects their client?

• Upholding proper administration of justice takes precedence over acting solely in the client’s best interests.

• Selective use of case law would mislead the court.

• Solicitor should disclose all material cases, whether supportive or adverse.
  🔹 SRA Principle 1 – uphold the rule of law and act in the administration of justice
  🔹 SRA Principle 7 – act in the best interests of each client
  🔹 SRA Code of Conduct (para 2.7) – duty to court regarding material information

A solicitor observes new facts on a site visit that the client has not mentioned in a personal injury claim. Can the solicitor share this information with the client or the court?

No. The solicitor must not use or tamper with evidence or influence witnesses. Sharing or inserting information not provided by the client could mislead the court and breach professional duties.
🔹 SRA Principle 1 – uphold the rule of law and act in the administration of justice
🔹 SRA Principle 7 – act in the best interests of each client
🔹 SRA Code of Conduct para 2.1 – do not misuse or tamper with evidence
🔹 SRA Code of Conduct para 2.2 – do not influence or persuade witnesses to change evidence

Why should the solicitor not act on evidence observed independently that the client did not mention?

• Duty to proper administration of justice (SRA Principle 1) overrides duty to act solely in the client’s interests (SRA Principle 7).

• Using the evidence could constitute tampering or influencing the outcome, which is prohibited.

• Solicitor must ensure that all evidence presented is authentic and unmanipulated.
  🔹 SRA Principle 1 – uphold the rule of law and act in the administration of justice
  🔹 SRA Principle 7 – act in the best interests of each client
  🔹 SRA Code of Conduct para 2.1 & 2.2 – evidence handling and witness conduct

Can a solicitor include a Non-Disclosure Agreement (NDA) that prevents a former employee from reporting serious breaches to regulatory or prosecutory bodies?

No. A solicitor must not prevent anyone from reporting information to the SRA or other regulatory, supervisory, investigatory, or prosecutory bodies acting in the public interest. NDAs must allow reporting of serious breaches.
🔹 SRA Principle 1 – uphold the rule of law and act in the administration of justice
🔹 SRA Code of Conduct (para 7.5) – must not prevent disclosure to regulators or prosecutory bodies

Why must NDAs drafted by a solicitor allow disclosure to regulatory or prosecutory bodies?

• Protects the public interest and proper functioning of regulatory bodies.

• Prevents NDAs from being used to conceal misconduct.

• Solicitors must balance client confidentiality with duties under SRA regulations.
  🔹 SRA Principle 1 – uphold the rule of law and act in the administration of justice
  🔹 SRA Code of Conduct (para 7.5) – must not restrict lawful disclosure to regulators