There is no obligation for lawyers to agree to act for a potential client. They may decline instructions because of workload, lack of expertise in an area of law, or due to a perceived conflict of interest. Solicitors and law firms who provide legal services are required by the Solicitors Regulation Authority (SRA) to have systems and controls in place that enable them to identify potential conflicts of interest.
There is no obligation for lawyers to agree to act for a potential client. They may decline instructions because of workload, lack of expertise in an area of law, or due to a perceived conflict of interest. Solicitors and law firms who provide legal services are required by the Solicitors Regulation Authority (SRA) to have systems and controls in place that enable them to identify potential conflicts of interest.
If you have a family issue and you require legal advice to understand your options, contact specialist family law solicitor Rebecca Calden-Storr of Stowe Family Law. With over 20 years’ experience, she is regularly instructed on matters arising from relationship breakdown, including divorce, financial disputes, complex assets, and disputes relating to children.
Identifying potential conflicts in different situations and scenarios is a judgment for the firm and solicitor in question. But where such a conflict is identified, or there is a significant risk of it arising, acting for an individual or organisation is prohibited. But what is a conflict of interest for a divorce settlement? Here, we look at the subject in detail.
What amounts to a conflict of interests?
Generally speaking, a conflict will arise if the solicitor is acting for two or more clients in the same or related matter, and their duties to act in the best interests of each of those clients conflict. For example, if the matter is the same and there is a risk of, or actual conflict; this includes a divorce where the firm is asked to act for both parties. Acting for both parties in a divorce is generally prohibited and is just one of the ways a conflict can arise. Conflicts of interest can also arise in more subtle ways during a divorce, including:
- If a solicitor consults, even only briefly, with an individual during divorce proceedings, it would be deemed a conflict for them to later represent the other party, even if the first party decided not to hire them after the consultation. This is because sensitive information will often be discussed during the initial appointment that could be used against them.
- If the solicitor represented both parties at one point during the marriage, and then when they separate, one party wants to keep using the lawyer for the divorce proceedings. A conflict would arise because of the information about the other party that may be known which has the potential to be used in divorce negotiations.
- Tying in with own-interest conflicts below, a solicitor is not allowed to represent someone if they are your friend, have been associated with you as a couple during your marriage, or if they are a family member.
Own-interest conflicts
Own-interest conflicts slightly differ from the more general conflict of interests. There is a strict prohibition on solicitors acting in any situation where there is a conflict for them regarding their own interests, or their duty to act in the best interests of the client, or where there is a significant risk of a conflict arising. There are no exceptions to this rule.
Own interest conflicts or risks of them arising can occur in a variety of scenarios, such as:
- A client wants to make a gift of a significant sum of money to the solicitor or leave a legacy in their will as a thank you or for some other reason
- The solicitor lends money to their client or borrows from them
- The solicitor sells property to, or buys from, their client
- The solicitor has a personal relationship with the client which impacts on their ability to advise them independently, impartially, and in the client’s best interests
Can a divorce solicitor represent both parties?
Although the idea of a single solicitor representing both parties might seem like a cost-effective and efficient solution, as stated above, one solicitor often cannot represent both parties in a divorce. This is because it would typically create divided loyalties, leading to a compromise of the quality of their legal advice.
In light of no-fault divorce and parties being able to apply jointly, some movement has been made towards addressing this rule. A new model is currently being discussed, known as Resolution Together, it proposes a single lawyer to advise both parties during a divorce or separation, whilst maintaining the highest ethical standards. Because this is such a complex area of law, the rules are still being worked out, but it is hoped some progress will be made soon.
How is a conflict of interest check carried out?
When you first contact a solicitor to make an appointment to discuss your divorce, a conflict of interest check will be carried out before accepting your matter, even if you have been a long-standing client. To this end, you will be asked to provide the following details:
- Your full name and address and that of your ex or any other relevant parties
- Dates of birth of all relevant parties
Sometimes, the conflict is not immediately obvious, and it may be further along in proceedings before details of the conflict come to light, or more information makes it apparent that it would be unwise to carry on with representation. This can happen when people have changed their name, used false names, or failed to provide correct details of all the people involved in the divorce.
Where a conflict of interest is found later on in proceedings, if a judgment or order has been made, then it may be overturned, and you could find yourself having to begin again from scratch.
What is “conflicting out”?
Choosing a lawyer to act for you is an extremely personal choice with factors such as location, reputation, and area of expertise likely to have considerable bearing. Conflicting out happens when one partner arranges to have initial consultations with a number, or all, of the specialist family lawyers in a particular area, whilst trying to find one that will suit them and their needs best. Because of the type of information disclosed in these meetings, it then makes it extremely difficult for the other party to find a lawyer to represent them because of the conflict of interest rules.
This type of behaviour is not always vindictive, but it would be hard to explain the reasons for visiting every solicitor in the area other than to prevent an ex from finding a solicitor convenient for them. Although this type of behaviour is largely limited to the celebrity world, it is becoming more prevalent in everyday life.
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