No absolute bar in England to representing and opposing same client in two different matters

Goubran shares my view that a solicitor can act for and against the one man at the same time. Just not in relation to the same thing. In fact, there is a degree of relation which makes it impermissible, and Goubran sets out the practically meaningless judicial utterances on the test for the requisite degree of relation. He does so by tackling the following passage from Bolkiah v KPMG [1999] 2 AC 222, 234 (Lord Millett) which I have always thought to be overarching:

‘a fiduciary cannot act at the same time both for and against the same client … A [lawyer] cannot without the consent of both clients act for one client while his partner is acting for another in the opposite interest.’

Goubran says:

“The first sentence, if taken literally, would preclude a lawyer from ever accepting instructions for and against the same client at the same time, notwithstanding that the two instructions might be wholly unrelated — one might be an employment dispute and the other might be in respect of a landlord and tenant matter. Alternatively, it would preclude a lawyer from prosecuting and defending criminal cases at the same time. [fn: Hollander and Salzedo, Conflicts of Interest and Chinese Walls (2nd ed, 2004), 29]

The City of London Law Society took the view that Lord Millett did not intend for the above passage to be taken literally and should be understood as ‘referring to opposing interests in the same matter’. [fn: City of London Law Society, Review of Conflict Rules (2000) 4. The City of London Law Society also states: ‘we are not aware of any other similar finding or dicta at law … if this is the law we would urge strongly that it be changed’: at 4–5.]

However, in Marks & Spencer plc v Freshfields Bruckhaus Deringer, an argument that Lord Millett’s comments should be read as limited to where the conflict related to the “same matter” was rejected [fn: [2004] 3 All ER 773, 777 (Lawrence Collins J): “I accept there must be some reasonable relationship between the two [transactions], but they do not, in my judgment, have to be the same.”] The Court’s rejection of the connecting factor was not based on the view that a connection between the two matters should not exist but rather that the formulation of the City of London Law Society was too narrow. The Court accepted that there had to be ‘some degree of relationship’ between the matters. [fn: See Hollander and Salzedo, … 31: “although there is room for much debate about what precisely is meant by ‘some reasonable relationship’ the test seems appropriate.” It should also be noted that similar phrasing is being adopted by the Law Society of England and Wales in its new draft conflict rules which were expected to come into force in 2005: Law Society of England and Wales, The Law Society’s Code of Conduct and the Recognised Bodies Regulations (2004) 34.]’

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