Conflicts of Interest: Screens and Silences
| Author | Allan C. Hutchinson |
| Pages | 134-156 |
CHAP TER 8
CONFLICTS OF
INTEREST: SCREENS
AND SILENCES
It is imperative that, in enteri ng into professional relationships w ith
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 pa rtisan for their clients’
interests and affairs; lawyers’ professional, economic, and personal in-
terests can undermine their independence and judgment and th reaten
the integrity of the law yer-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 ari se.
While there is little to suggest t hat lawyers have operated willy-nilly in
actual or potential conflict sit uations, 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 f ull and reasonable
provision of legal serv ices is being adversely a ffected.
In this chapter I w ill 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 ari se: acting
for two current clients in related transactions; acting for two current
clients in unrelated t ransactions; acting against former clients; and a
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Conflicts of Intere st: Screens and Silences 135
clash between the clients’ and the lawyer’s own interests. Each of these
is exacerbated by the recent ri se 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 t heir fiduciary duty to
their clients, law yers must ensure that they avoid potential a s well as
actual conflicts. While in many cases it w ill be sufficient to inform cli-
ents of potential conflicts and seek their expres s 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 si mpler times and in simpler ci rcumstances t han
the conditions of contemporary professional practice. Consequently,
the doctr inal and ethical c hallenge is to adapt the basic princ iples 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 f rame the discu ssion around the courts’ un-
folding approach to the conflicts doctrine.
A. LAWYER S’ 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 e s-
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 t hem in the strictest confidence, so
should they be completely assured that their law yers will not engage in
conduct that jeopardizes the cl ients’ interests or otherwise impairs their
lawyers’ ability to act w ith 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
1 Two 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.
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