Recent guidance from the English solicitors' regulatory authority has caused a review of practice on issues of conflicts of interest which may be particularly pertinent in international cases.
Making sure there is no conflict of interest is fundamental and distinctive to the professions. Other commercial walks of life can fudge these fundamentals and skirt around the ethical edges in ways which customers and clients often do not appreciate or realise. But not the professions. We must refuse to take instructions where not only there is a conflict of interest but often where there could be a perceived conflict.
In family law, potential conflicts are quite frequent. Although there are usually only two parties, there is often only a relatively small pool of potential lawyers. In any high street, town or city, the acknowledged specialists are likely to be consulted. In any sector of society, whether faith-based, particular community groups, areas of industry or similar, particular professionals are well-known and likely to be approached.
The same applies for international families with the still relatively small group of specialists. As a practice with a high profile in international work here and abroad, we frequently receive enquiries from both parties of an international family within a fairly short period of each other. We are contacted by two sets of foreign lawyers seeking assistance for each party involved in proceedings abroad. Having a fast and reliable conflict check process is crucial. Contact in international cases often occurs out of working hours and again the conflict check process needs to be available and undertaken quickly in order to avoid two partners independently working for opposing parties throughout a Saturday. There is nothing worse than not being able to act for either party!
It has however just come to our attention that our regulatory authority insists that we are ultra-cautious in what we say when conducting conflict checks.
First, we have hitherto been quite open when receiving new enquiries or instructions to ask the name of the other party 'for conflict check purposes'. Apparently we can no longer say this. We are told that we can say we are required to carry out checks "for professional conduct reasons". We are told that we cannot say it is for conflict check purposes. Perhaps only a minor distinction (and many will realise) but some in a preliminary enquiry will ask why we are seeking the information.
Secondly, if a conflict then appears (eg a law firm has previously had instructions for the other party or might be acting for that other party), we are now told that we cannot say that we are unable to act by reason of a conflict. It would be breach of client confidentiality. We have been specifically told that we should say to the otherwise potential client that we are 'professionally unable' to act and no more. No reasons to be given.
England has a very active discrimination industry, bringing claims very quickly and freely at any hint of discrimination, with colossal damages often ensuing. If we are unable to say why we cannot accept instructions, perhaps after a preliminary telephone call when details were taken, there may be suspicion that it is for discriminatory reasons eg race, ethnicity, orientation or otherwise. We challenged our regulatory authority and we have been told that we are protected by our Code of Professional Conduct from any complaints as we would be able to give evidence that we were adhering to professional conduct requirements.
The English legal profession is intensively regulated. Sometimes it seems very heavy-handed. Sometimes it is very sensible and ultimately right and for the best reasons. Although changing patterns of professional behaviour, this guidance in potential conflict situations does seem right and appropriate. It safeguards the solicitor and its clients.
In the meantime do not be offended if an English family lawyer says they cannot act but refuses to give the reason. Blame the regulators.
David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.
David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.