Conflicts of Interest

 ......................................................................................................................................
Description
It is striking how few conflict of interest cases involving lawyers end up in Court in England. The risks of losing are significant: not merely paying the costs and losing the client, but the possibility of reputational damage combined with a regulator anxious to search for easy pickings once a law firm has lost in court means that lawyers tend to run shy of conflicts litigation. Other jurisdictions do not seem to have this problem: there has always been plenty of conflicts litigation in Australia and the Canadians do not seem reluctant to litigate either, notwith- standing the recent Can $36.9 million award against a well-known law firm said to have been reluctant to press its clients' position against another client for whom it also acted.
Nonetheless, four years on from the last edition, there is still plenty of new material for the regular reader. Arbitral conflicts, and in particular the recent deci sion in Halliburton Co v Bermuda Chubb Insurance, are perhaps the area of most activity although many will be comforted to know that the Advisory Committee on Judicial Ethics of the New York State Unified Court System helpfully opined that the mere status of being a Facebook friend without more was an insufficient basis to require recusal. There is authority on the significance of a failure to make disclosure. So too there is a steady stream of judicial conflicts. The principles for judicial conflicts are straightforward but their application is often tricky and capable of giving rise to differing views. Thus the Privy Council decision in Almazeedi v Penner, where the majority reached the perhaps surprising conclu sion that Sir Peter Cresswell should have recused himself from sitting as a Bermuda judge on a matter involving entities affiliated to the Qatari state on the ground that he sat also as a part-time judge of the Qatari court, was described by Lord Sumption, in the minority of one, as "fantastic" and "at the outer extreme of implausibility".
There are a number of new cases on what we refer to as the duty to the other side: P&P Property Ltd v Owen White & Catlin LLP, and, just as this edition went to press, Glencairn IP Holdings Ltd v Product Specialities, the latter also raising the question whether the "real risk of disclosure" test can apply where there has been no prior fiduciary relationship. Glencairn is to be applauded as largely put- ting to bed the unsatisfactory decision of the Court of Appeal in British Sky Broadcasting Group Plc v Virgin Media Communications and accepting the criti- cisms this work has been making of Virgin Media for over a decade,
There are new SRA Rules in force. The SRA have decided to dispense with their "indicative behaviours" in favour of a minimalist body of rules. Few will la ment their demise.
Elsewhere there are new cases on secret commissions, "half" secret commis- sions (existence but not quantum of payment disclosed), beauty contests, shadow directors, and when the court will deprive the agent of his remuneration in addi- tion to other remedies.
One curious developing area is judicial plagiarism, where the judge largely copies into a judgment the submissions of one party, which has led to decisions in Singapore, Canada and England. Whilst the practice is universally criticised, ultimately in each of these cases the court has upheld the initial decision.
......................................................................................................................................
Table of Contents
Chapter 1. Conflicts of Interest : the Principles
Chapter 2. Existing Client Conflict : the Fiduciary Obligation
Chapter 3. the Double Employment Rule
Chapter 4. Managing Conflicts by Contract
Chapter 5. Perception of Impropriety as a Test for Conflicts
Chapter 6. the Obligation to Disclose Information
Chapter 7. Information Barriers
Chapter 8. Litigating Conflicts
Chapter 9. the Duty to the other Side
Chapter 10. Blowing the Whistle on the Client
Chapter 11. Judicial Conflicts : Bias and Apparent Bias
Chapter 12. Juries, Tribunals and Other Decision - Makers
Chapter 13. Judicial Conflicts : Applying the Principles
Chapter 14. Arbitrations
Chapter 15. Solictors
Chapter 16. Barristers
Chapter 17. Accountants
Chapter 18. Directors
Chapter 19. Conflicts in the City
Chapter 20. Estate Agents and Insurance Brokers
......................................................................................................................................
Author Details
Charles Hollander QC
Simon Salzedo QC