The Ambidextrous Lawyer: Conflict of Interest and the Medieval Legal Profession
Sandra Day O'Connor College of Law Arizona State University College of Law
University of Chicago Roundtable, Vol. 7, Spring 2000
In the medieval era, ambidexterity, the medieval term for conflict of interest, appeared in two primary contexts: lawyer discipline and the civil liability of lawyers to victims of their misconduct. This paper studies ambidexterity, a common form of medieval lawyer misconduct, in these two contexts. The paper examines the medieval regulation of ambidexterity by analyzing the different types of conflicts, the specific loyalty duties and their rationales, and the sanctions applied. Finally, the analysis identifies the ways in which medieval conflict of interest regulation is both similar to and dissimilar from its modern treatment. The paper identifies about 75 cases, arising primarily from 1278-1400, which were classified for discussion into five categories: switching sides in the same litigation (classic ambidexterity), adversity to a former client, adversity to a client on an unrelated matter, simultaneous representation of multiple plaintiffs or defendants, and conflicts with a lawyer's personal interest.
The paper concludes that these judicially developed loyalty norms were strongest and most commonly and strictly applied to classic ambidexterity, but that loyalty duties were also owed to former clients. In both categories, protection of confidentiality played an important role. Loyalty norms also arose with regard to adversity to client on an unrelated matter, but differently as it was created consensually through contractual retainers, not by judicial or regulatory fiat. Implementation of these norms occurred in lawyers' suits for arrearages in the annuities owed by clients. Potential conflicts of interest, simultaneous representation of multiple parties, were not treated as problematic and no loyalty norms arose in such cases. Nor were conflicts with a lawyer's personal interest considered a significant problem. Finally, although the medieval cases revealed interesting similarities with modern conflict of interest regulation, the differences were more pronounced. The medieval conduct was more egregious, the loyalty duties narrower, and the remedies more limited although more punitive. The paper then considers the civil liability of lawyers to victims of ambidexterity. This portion of the paper begins with a preliminary survey of the evolution of the civil liability of lawyers. The discussion then moves to an analysis of about 30 cases involving civil liability. The paper concludes, based on this subset of cases involving ambidexterity, that the civil liability of lawyers evolved apart from the development of
negligence based liability and that the civil liability of lawyers was more limited in several respects than its modern counterpart. The paper concludes with some general conclusions regarding the medieval treatment of ambidexterity and by suggesting further areas of useful research.
Number of Pages in PDF File: 73
JEL Classification: K10, K40
Date posted: December 11, 1999