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May it please the court, my name is chaker, C H A K E R, initial A. My task today is to speak with Your Honour about the topic of concurrent conflicts and the specific matter of Solange and her clients. I begin my submissions stating that the basic proscriptions of fiduciary law are aimed at encoura...

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May it please the court, my name is chaker, C H A K E R, initial A. My task today is to speak with Your Honour about the topic of concurrent conflicts and the specific matter of Solange and her clients. I begin my submissions by stating that the basic proscriptions of fiduciary law are aimed at encouraging undivided loyalty from lawyers to clients. Loyalty cannot be achieved or maintained however if a solicitor represents 2 or more clients with conflicting interests. This is highlighted in the Canadian case of Davey and Woolley, Hames, Dale & Dingall, Dominion Law Reports, 1982, case 133 where Judge Wilson stated: a lawyer cannot “give his exclusive, undivided attention to the interests of his client if he is torn between…his client’s interests and those of another client to whom he owes the self-same duty of loyalty”. That is, completely fulfilling the interests of one client will inadvertently result in the demise of the other clients interests. It is for this very reason that my client Solange finds herself before the Law Society of NSW. While attempting to bona fide provide her services to several longstanding clients, Solange has breached her fiduciary duty of loyalty and may be liable for equitable compensation. The reasons for this will now be revealed. Rule 11.1 of the Legal Profession Uniform Law, Australian Solicitors’ Conduct Rules, NSW, 2015 exists to prohibit a lawyer from representing 2 or more clients with adverse interests. However, rule 11.3 operates to counteract this rule where certain criterion is satisfied. The rule states that: “subject always to each solicitor discharging their duty to act in the best interests of their client”, if a) each client is aware that the solicitor or law practice is also acting for another client (11.3.1), and b) each client has given informed consent to the solicitor or law practice so acting (11.3.2), then informed consent allows and protects the solicitor to represent concurrent clients. Based on the facts of the case, Max, Josh & Aimee were all aware of each other and they themselves requested that Solange undertake the conveyance for them thus providing consent. However even though they consented per se, the clients were not independently advised about possible conflicts and repercussions. A prudent lawyer would have advised them to seek this independent counsel before accepting the retainer but no such thing occurred. A prudent lawyer would also have limited the scope of the retainer in writing to protect oneself, particularly when conflict arose. However no such thing occurred.

The transactional nature of the conveyance of land categorises the work undertaken by Solange as non-contentious. Therefore, a prima facie view of the scenario indicates that Solange is not in breach of loyalty or any other fiduciary duty. No legislation or common law precedent works to forbid a lawyer from representing two or more clients in non-contentious work. That is, it is not explicitly unethical to represent clients with conflicting interests as no blanket prohibition exists to deny this. However, a breach of the duty of loyalty occurred when Solange advised Lynn about the building that encroached on her land. Even though Lynn was a longstanding client, her interests were adverse to the interests of the other 3 clients (namely Max, Josh and Aimee). Furthermore, Max, Josh and Aimee were not aware of Lynn and consequently did not provide informed consent to Solange about concurrent representation. As per Judge Byrne in Marron and J Chatham Daunt Propriety Limited, Victoria Supreme Court, 1998, case 110, the following principle emerged: “it is the solicitor who should in the normal course be the first to apprehend” a conflict of interest and who should have “not only the integrity to withdraw when conflict arises, but also the perception to sense its pendency before it arises in fact”. The detection of the encroaching building by Solange was the moment she should have discovered the conflict and ceased representation for either Lynn or the others. Rule 11.5 of the Australian Solicitors’ Conduct Rules is the relevant statue and states that after a conflict arises, “the solicitor or law practice may only continue to act for one of the clients or a group of clients provided there is no risk to confidentiality”. However, Solange continued with her representation and attempted to mediate the conflict which ultimately led to her clients suffering the consequences. While Solange did drop Max as a client and advise him to seek independent council, it occurred too late after the damage had already been done and after she had already breached rule 11.5. It is established that acting for both vendor and purchaser is a scenario in which conflict frequents itself. Solange could no longer completely satisfy the interests of Josh and Aimee by selling the land for a sound price whilst also sufficiently meeting the interests of Max. This would have required not revealing the discovery of the encroaching building to Max. If that option were to be taken, Solange would have been in a severe breach of loyalty. A breach of this calibre occurred in Mollie Standish Stewart and Nicholas Guy Layton, Full Court of Australia, 1992, case 618 which entails the sale of land similar

to this case. The solicitor here was ordered to pay $165,000 in damages due to “a breach of his fiduciary obligation to the vendor in failing to disclose to her his information” that would have avoided such a great loss to his client. Synonymous to the Mollie case, Solange found herself in a catch 22 scenario where the best course of action was to cease representation the moment the conflict manifested. She pursued the matter however and consequently not only delayed the transaction, but also caused financial loss. A few factors that may mitigate the breaches caused by Solange include the rural nature of her practice. She is the only solicitor acting in her town with the nearest a few hours’ drive away. Thus when accepting the work she was attempting to save her clients great inconvenience and costs. As per the previously mentioned case of Marron, “the problem is particularly acute in regional or country towns where the number of firms of solicitors may be few”. Consequently, due to limited resources in the town, Solange felt obliged to accept all clients. After an analysis of the relevant facts and applicable laws to this case, I submit that whether in equity, fiduciary or contract law, a wrong has been committed by Solange against Josh and Aimee. Her continual representation after she discovered the encroaching building should have led her to advise either Max or Josh and Aimee to seek independent counsel. Instead, Solange failed to do so and attempted to mediate the dispute resulting in a divided and disloyal representation of her clients which fostered an environment of mistrust. Accordingly, Josh and Aimee have suffered from financial loss in the result of a decreased sale price and should be eligible for compensation. Solange should take greater care in the future when representing concurrent clients and educate them appropriately about the possible conflicts and repercussions of this representation. That concludes my submissions your honour.

Prescribed Case: Facts: Solicitor(Nicholas Guy) acted for both vendor (Mollie Standish Stewart) and purchaser (Mr Creigton) in real property transaction – and subsequently, conflict of duties arose when solicitor obtained knowledge as to precarious financial position of purchaser. The question was whether solicitor breached fiduciary, tortious and contractual duties owed to vendor when he advised vendor to provide finance to purchaser secured by way of second mortgage to enable completion of transaction with knowledge of purchaser's precarious financial position. The solicitor in this case, namely Nicholas Guy failed to disclose information to his client about the financial position of his other client at an early enough time that would have allowed his client to make an informed decision. If such a discussion did occur, Mollie would have rejected the deal and would have not provided the mortgage. Chapter 16: Chinese Walls also known as information barriers are potentially effective as a means to avoid the misuse of confidential information. Barriers are implemented to avoid information about previous clients being used for the benefit of a current client. This is only effective however if there is no possibility of a leakage of confidential information Concurrent criminal representation: No blanket legal prohibition exists preventing a lawyer from representing multiple criminal defendants. However conflicts of interest will arise. For example, it may restrict a lawyer from raising issues of character of one defendant for fear of casting doubt over the other defendants. Furthermore, a solicitor may be made aware of new evidence that could convict one but not other clients and will be faced with a conflict. Application of the fiduciary proscription is arguably stricter in regards to contentious work relative to non-contentious. Mainly due to the higher severity of consequences and disruptiveness caused by conflict in contentious work such as finding a new lawyer, delayed trial etc. Furthermore, the highly patterned and formulaic steps involved in non-contentious work make it easier to foresee prospective conflict....