Conflicts of Interest: Recognition, Avoidance, Resolution

This topic brings into focus two competing tensions; the first is the tension between the professional and ethical obligations of a solicitor on the one hand as opposed to the commercial factors that can be brought to bear, particularly under the partnership model. The second tension is between solicitors’ regulatory obligations and what can be seen as practical good sense because the law of conflicts is an area where doing the right thing can in fact lead you to the wrong place. As law firms become larger and are forced to be more cost effective per retainer, the need for work grows. Combine this need with (i) increasingly sophisticated and challenging clients and (ii) ever more intense regulation, and the scene is set for problems relating to conflicts of interest. In this podcast, we aim to summarise the principles applicable to conflicts of interest and to identify what can and cannot be done to manage the risks of and arising from conflicts of interest. The law in this area is far from settled and the existence of conflicts and how they are best dealt with is very fact sensitive. Accordingly, what follows is not intended to be definitive or a panacea. But we hope it will serve as a helpful guide through what can seem rather a maze of law and regulation.