Conflicting a lawyer out of acting for the other party

family law

So you’ve just separated from your spouse and divorce proceedings beckon. You obviously want to instruct the best lawyer you can find, but then so does your spouse. If you both have excellent lawyers, then you have no advantage in that regard over your spouse. What to do?

Well, one answer is to take steps to prevent your spouse from using a top lawyer. How do you do that? Why, by conflicting them out of acting for your spouse, of course!

OK, so what do I mean by ‘conflicting them out’? Well, there is a rule whereby a lawyer cannot act for a client where there is a ‘conflict of interests’. The Solicitors Regulation Authority have a Code of Conduct governing how solicitors should behave. The Code defines ‘conflict of interests’ as any situation where:

(i) [the solicitor] owes separate duties to act in the best interests of two or more clients in relation to the same or related matters, and those duties conflict, or there is a significant risk that those duties may conflict (a “client conflict”); or

(ii) [the solicitor’s] duty to act in the best interests of any client in relation to a matter conflicts, or there is a significant risk that it may conflict, with [the solicitor’s] own interests in relation to that or a related matter (an “own interest conflict”).

In other words, a conflict of interests arises where the interests of the client conflict with those of another client, or the solicitor. The most common scenario is a litigation case where the solicitor has previously acted for one party in connection with the same or a related matter, and is then asked to act for the other party. In such a case the first party would be at a disadvantage if they had disclosed confidential information relevant to the case to the solicitor, and there would therefore be a conflict.

If there is a conflict then the solicitor should decline to act for the second party. If they do not, then the first party may raise an objection to the court, and the court can bar the solicitor from acting further for the second party.

So, armed with this knowledge a party to divorce proceedings can ‘temporarily’ instruct a firm of solicitors, with the sole purpose of ensuring that they are unable to act for their spouse. In fact, they can temporarily instruct whatever firms they don’t want to act for their spouse, before settling on the firm that they actually want to represent them.

That, according to a finding by Mr Justice Williams, was at least in part the motivation of the husband in the recent case S -v- S (Application to Prevent Solicitor Acting), when his representative consulted several firms of solicitors about his divorce.

Very briefly, the relevant facts in the case were that the husband claimed that in November 2015 his representative had consulted six different firms of solicitors, apparently with the intention of deciding which firm should act for him in connection with his divorce. When he found that his wife had instructed one of those firms he applied to the court for that firm to be debarred from acting for her on the basis of a conflict of interests, the solicitor in the firm, he claimed, having been privy to confidential and privileged information.

Hearing the application, Williams J set out the issues. For the sake of this post, I will reduce them to just two: did the meeting between the husband’s representative and the solicitor take place, and if it did, can the husband prove that any confidential or privileged material relevant to the divorce proceedings was communicated to the solicitor?

As to the first issue, Williams J found that the meeting had taken place. However, he did not find that any confidential material was imparted to the solicitor, or that any privileged information or advice arose. He concluded that it was a very brief meeting which perhaps the representative was attending to complete the job of going around the firms he had been instructed to, with the parallel intention to conflict them. Accordingly, the husband’s application was dismissed.

An interesting case, but perhaps not a good advert for the tactic of conflicting firms out of acting for your spouse!

You can read the full report of S v S here.

Photo by TheGabeC via Flickr under a Creative Commons licence.

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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2 comments

Rum - November 22, 2017 at 5:27pm

Again what an informative post. May I ask a serious question in relation to conflict of interest. I am itching to know if the conduct rules are ever enforced. Example as in , a solicitors and barrister are issued with evidence of assets , non disclosure , etc . They forward valuations and surveyors that don’t even follow the judges order. They rack up as much as the application is for . They continue to lie for their client but you can’t disclose to the Barr as the proceedings are confidential . A circuit judge is asked if they can continue to back this onslaught of non disclosure, and hiding assets and bank accounts , or should they uphold their duty to court ‘? The circuit judge says yes they can continue to act . Prolonged stress, financial strain whilst they milk the defendant . What does the Barr do about this ? Can you get a wasted costs order paid to the children , as it’s their inheritance being robbed away by solicitors. A litigant in person has no loss financially but their children’s inheritance is lost and the applicants will to live , with stress listening to a legal Pinocchio and your lying ex. Can you apply for a wasted costs order for the extended , nearly two years of strive and worry you endure. Evidence overwhelming but it does not pay the bills . Any help would be tremendously appreciated in this schedule 1 financial remedy of blood sucking defendants solicitors. It’s obscene what they are doing

David BURROWS - November 23, 2017 at 1:02pm

If another view on this minor – but expensive of judicial time – issue is permitted, see https://dbfamilylaw.wordpress.com/2017/11/22/secrecy-and-disproportionality-in-the-family-courts/ .The secrecy, and its absorption of judicial time for a fee of £155, are surely worth asking about?

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