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  • Print publication year: 2018
  • Online publication date: April 2019

7 - Conflicting Loyalties

Summary

Introduction

The profession has traditionally seen it as a cornerstone of adversarial advocacy that lawyers serve each client's interest loyally, confidentially and carefully. As we saw in Chapter 4, the touchstone of lawyers’ professional obligations of devoted service to their clients is the trilogy of duties – loyalty, confidentiality and care; and the most strict and onerous rules in the law of lawyering relate to these duties. This chapter is concerned with the first of those duties – loyalty.

The duty of loyalty requires lawyers 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. It also requires lawyers 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 for misconduct.

The duty of loyalty is a virtue ethics concept and can be based in either or both adversarial advocacy and responsible lawyering. Adversarial advocacy assumes that clients need to be able to trust their lawyers to provide advice and represent them in the legal system completely uninfluenced by any concern other than the client's interests. A narrow adversarial advocacy conception of the duty of loyalty would see the client's interest as the touchstone of the duty. This means that as long as the client's interests are not actually harmed, then it might be possible to ‘cure’ a potential conflict through measures such as client consent or information barriers (discussed further below). On an adversarial advocacy approach, the duty of loyalty also might not survive the ending of the lawyer-client relationship to the extent that the lawyer is no longer obligated to further the client's interests.