Judicial Disqualification of Solicitors with Client Conflicts
(2014) 130 Law Quarterly Review 498
18 Pages Posted: 16 May 2014 Last revised: 22 Aug 2014
Date Written: July 1, 2014
Solicitors regularly must assess whether to decline or end retainers because of possible conflicts with the interests of current or former clients. If they proceed with a questionable retainer, a current or former client may object, and a judge may order that they be restrained from acting. The jurisprudence that has developed on the judicial power to restrain or disqualify solicitors obviously is a key source of guidance for those who must confront the issue. Unfortunately the jurisprudence is uncertain. An initial difficulty is the failure to identify credibly the policy considerations that are relevant. A second difficulty is that, as the following analysis will show, the precise nature of the test for disqualification has remained elusive. A significant weakness with the judicial analysis is its focus on negligence by solicitors, rather than opportunistic conduct by them. Correcting that analytical deficiency is necessary to nurture both the fact and appearance of high professional conduct.
Keywords: solicitor disqualification, solicitor conflict of interest, solicitor-client conflict, lawyer duty of loyalty, former client conflict, Bolkiah
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