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  • Print publication year: 2007
  • Online publication date: June 2012

7 - Conflicting Loyalties

Summary

Introduction

The touchstone of lawyers' professional obligations of devoted client service to their clients is the trilogy of duties: loyalty, confidentiality and care. The most strict and onerous rules in the law of lawyering relate to these duties, and although there is much case law and commentary on the detail of each obligation, their main contours are quite clear.

First, lawyers are supposed to avoid situations involving a conflict of interest between a lawyer's personal interest and their duty to a client; or, a conflict of duties owed to two or more clients. Lawyers are also supposed to refrain from using their relationship with the client as a means of making any personal gain, and they must fully disclose to their client any conflicts of interest or personal gains that do arise. These obligations apply not just to the individual lawyer but to the whole firm: if one lawyer cannot act for a potential client because of a conflict of interest, then usually the whole firm cannot act. These are ‘fiduciary’ obligations set out and enforceable in the law of equity and also reinforced in professional conduct rules and disciplinary decisions. In addition to being sued by their clients for breach of these obligations at general law, lawyers can also be disciplined.

Lawyers also have strict obligations to maintain the confidentiality of information relating to the representation of each client, and generally must not disclose or otherwise use that information for other purposes.

Recommended Further Reading
Dal, G E Pont, Lawyers' Professional Responsibility (Lawbook Co, Pyrmont, NSW, 3 edn, 2006) ‘Part II: Lawyers’ Duty to the Client' especially Chapters 6, 7, 8, 9 and 10.
Adrian, Evans, ‘A Mutuality of Interest’ (2003) 77(7) Law Institute Journal86.
Adrian, Evans, ‘Concurrent Loyalties’ (2004) 78(6) Law Institute Journal82.
Janine, Griffiths-Baker, Serving Two Masters: Conflicts of Interest in the Modern Law Firm (Hart Publishing, Oxford, 2002).
Law Society of New South Wales in consultation with the Law Institute of Victoria, Information Barrier Guidelines (2006) Law Society of New South Wales <http://www.lawsociety.com.au/page.asp?partID=15645> at 2 June 2006.
Donald, Nicolson and Julian, Webb, Professional Legal Ethics: Critical Interrogations (Oxford University Press, Oxford, 1999) ‘Ch 9: Confidentiality’ 253–76.
Richard, Tur, ‘Confidentiality and Accountability’ (1992) 1 Griffith Law Review73.
Duncan, Webb, ‘Autonomy, Paternalism, and Institutional Interest: Why Some Conflicts Can't be Waived’ (2005) 12 International Journal of the Legal Profession261.