Ethics Hub

Scenario: The interests of your clients conflict with each other

You are acting for Fola Adegoke who has been successful in proceedings against her father (Mr Adegoke) relating to the ownership of a flat in Newcastle. He has been ordered to pay her costs. Fola Adegoke’s mother also has a costs order against Mr Adegoke in relation to separate proceedings.

You were originally instructed by Fola Adegoke. She asked you to also act for her mother, as her mother is elderly and would not be able to manage instructing a separate Costs Lawyer. All of your instructions have come from Fola Adegoke.

During the course of the matter, you become aware that it is likely there will be a shortfall in the defendant’s ability to pay the costs awarded to each client. You are concerned that this could create a possible conflict between Fola Adegoke and her mother.

What action should you take?

  • Principle 3.1a (iii) of the Code of Conduct states that you should cease to act if your client’s interests conflict with those of another client. You may, however, act if each client has substantially common interests and has given informed consent.
  • Informed consent means that the client must be informed of the risks of you continuing to act for them and the alternatives of seeking separate representation or advice, and must give their consent in that context. You are, of course, entitled to point out any benefits of you continuing to act. The client must also understand the extent to which their confidential information needs to be shared with the other client(s) in order for you to advise all clients properly, and understand the impact of that, and then give their consent where necessary.
  • Whenever you consider that there is a risk of client conflict you should ask yourself the following questions: First, are you able to act independently in all the clients’ best interests? Second, have you obtained each of the clients’ informed consent to act for all of them, including as to what information can be shared between them? If you are not able to answer both these questions clearly in the affirmative, then you are likely to find yourself acting in conflict, and should refuse to act (or cease acting) for one or more of the clients.
  • At this stage, your clients’ interests are still aligned, but a conflict might arise in the future.
  • You should make both Ms Adegoke and her mother aware of the situation so they can make fully informed decisions and give instructions accordingly. You should ensure that both Fola Adegoke and her mother are aware of the risk of a conflict arising and the options available to them if a conflict did arise. For example, one client may need to seek independent advice on particular issues or change legal advisor if the conflict cannot be appropriately managed.
  • If both clients are content to proceed in the face of a potential conflict, you should ensure that you obtain their individual consent in writing. This should be done through direct correspondence with both clients, rather than engaging with the mother via her daughter.
  • In line with Principle 3.7 of the Code of Conduct, you should ensure that the information you provide to the mother is in a form that is tailored to her needs and circumstances. As the mother is elderly, she is potentially a vulnerable client and you should tailor your communications accordingly. You may find the CLSB guidance note on vulnerable clients useful in this regard.
  • Principle 1.1 – You must act honestly and with integrity, not only in your professional life but also in your private life where your behaviour might reasonably be considered to undermine your adherence to the core ethical principles of the profession.
  • Principle 1.7 – You must not act in any way which is likely to diminish the trust the public places in you or in the profession of Costs Lawyers.
  • Principle 3.1 – You must act at all times in the best interests of your client, except where this conflicts with your duty to act independently in the interests of the proper administration of justice or where otherwise permitted by law. You must act in the best interests of your client regardless of the consequences for your professional client or other intermediary. You must not permit a professional client, employer or any other person to limit your ability to fulfil this duty.
  • Principle 3.1a – You must decline to accept an instruction from a client or, if you have already accepted an instruction, you must cease to act if:
    • it would not be in the client’s best interests for you to act;
    • your own interests conflict with your duty to act in the best interests of the client in relation to the instruction, or there is a significant risk of such a conflict arising during the course of the instruction; or
    • the client’s interests conflict with those of another client. You may, however, act if each client has substantially common interests and has given informed consent.
  • Principle 7.1 – You must keep the affairs of your client confidential unless disclosure is required or allowed by law or if the client consents in writing to disclosure, having had the consequences of such consent explained to them. You must ensure that your client is able, in your reasonable opinion, to give informed consent to waiving their right to confidentiality.

See our Guidance Notes on the following topics in the Costs Lawyer Handbook:

  • Conflicts of Interest
  • Dealing with Consumers
  • Vulnerable Consumers
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