Conflicts of Interest: Screens and Silences

• Author: Allan C. Hutchinson
• Pages: 134-156

CHAPTER 8

CONFLICTS OF

INTEREST: SCREENS

AND SILENCES

It is imperative that, in entering into professional relationships with

clients, lawyers do not act in such a way as to place themselves in a

position where the interests of their clients might be taken advantage

of or compromised. This is part and parcel of lawyers’ overall f‌iduci-

ary duty and their particular role as a zealous partisan for their clients’

interests and affairs; lawyers’ professional, economic, and personal in-

terests can undermine their independence and judgment and threaten

the integrity of the lawyer-client relationship. However, lawyers have

traditionally not been as sensitive as they might to the complex and

unanticipated circumstances in which conf‌licts of interest might arise.

While there is little to suggest t hat lawyers have operated willy-nilly in

actual or potential conf‌lict situations, the legal profession did not take

such possibilities as s eriously as it might have done. However, in recent

years, the need to f‌lag and avoid conf‌lict situations has come to the

forefront of the profession’s attention. Both individually and collective-

ly, lawyers have now become much more attuned to the possibilities of

conf‌lict situations ari sing. Indeed, one might almost conclude that they

have become overconcerned, to the extent that the full and reasonable

provision of legal services is being adversely affected.

In this chapter I will survey the nature and extent of the prohibi-

tions that have developed around conf‌licts of interest. There are four

situations in which potential conf‌licts of interest might arise: acting

for two current clients in related transactions; acting for two current

clients in unrelated transactions; acting against former clients; and a

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Conf‌licts of Intere st: Screens and Silences135

clash between the clients’ and the lawyer’s own interests. Each of these

is exacerbated by the recent rise of large law f‌irms in which lawyers

are not always sure about the identity, let alone the interests, of many

of their colleagues’ clients. In each situation, the requirement to avoid

conf‌licts of interest f‌lows both from the duty to be loyal to the client

and from the duty of conf‌identiality. As part of their f‌iduciary duty to

their clients, lawyers must ensure that they avoid potential as well as

actual conf‌licts. While in many cases it will be suff‌icient to inform cli-

ents of potential conf‌licts and seek their express approval to continue

acting as their law yer, there will be occasions on which lawyers will be

expected to withd raw. Unfortunately, the doctrine sur rounding conf‌lict

situations arose in simpler times and in simpler circumstances than

the conditions of contemporary professional practice. Consequently,

the doctrinal and ethical challenge is to adapt the basic principles to

the more complex problems and possibilities that now arise.1 The de-

velopment of recent jurisprudence has given added pertinence to these

issues. Accordingly, rather than follow a separate conceptual typology,

it is more illuminating to frame the discussion around the courts’ un-

folding approach to the conf‌licts doctrine.

A. LAWYERS’ OWN INTERESTS

The basic rules that frame an actual conf‌lict of interest a nd what lawyers

must do in such situ ations can be t raced back to l awyers’ genera l duty to

act as a zealous partisan on behalf of their clients and their interests. As

the imposition of a f‌iduciary on lawyers to their clients suggests, it is es-

sential that cl ients are able to trust their lawyers. Without an appropri ate

degr ee of tr ust, th e profess ional re lation ship is s everely c ompromis ed. In

the same way that clients should have no doubt that their lawyers will

hold all communications between them in the strictest conf‌idence, so

should they be completely assured that their lawyers will not engage in

conduct that jeopardizes the clients’ interests or otherwise impairs their

lawyers’ ability to act with only their clients’ interests foremost in their

minds. It is clearly not in clients’ interests to have their lawyers repre-

senting other clients who are adverse in interest to them and/or who

1Two important and broad-ranging comparative analyses of the area are Susan

Shapiro, Tangled Loyalties: Conf‌licts Of Interest In L egal Practice (Ann Arbor,

MI: University of M ichigan Press, 2002) in the Unite d States and Janine Gri f-

f‌iths-Baker, Serving Two Masters: Conf‌licts Of Interests In The Mod ern Law Firm

(Oxford: Hart, 20 02) in the United K ingdom.