Chapter 8
Conflicting Loyalties
Chapter Outline
The cornerstone of adversarial advocacy is that lawyers serve each client’s interest
loyally, confidentially and carefully. Chapter 8 is concerned with the first of those
duties – loyalty. Loyalty is an endangered species in popular western culture and
many think of the concept as quaint and old fashioned. Loyalty is undoubtedly an
ancient idea. Aristotle championed it 2400 years ago as an essential virtue. But at the
same time, its appeal is timeless. Every human being wants their partner to be loyal to
them and all professions expect that professionals will treat their patients or clients
respectfully and be loyal to them. In particular, clients absolutely demand that their
lawyers be loyal to them. Lawyers may not have a reciprocal expectation, but
regardless, they must on guard against a trio of conflicts of interest which challenge
that loyalty to their clients:
1.
where their personal interests conflict with those of their clients (lawyer-client
conflict),
2.
where they have two (so called, concurrent) clients with opposed interests
3.
where a current (successive) client is opposed to a former client.
Chapter 8 makes the point that the duty of loyalty may be grounded in
adversarial advocacy, but loyalty as a concept has multiple bases and there are
multiple loyalties. Each of responsible lawyering (loyalty to the administration of
justice), moral activism (loyalty to the ideal of fairness in society and to the natural
law expressions of such fairness) and the ethics of care (loyalty to one’s family, in
order to maintain personal integrity and sustainably serve clients’ needs), contribute
to an expanded understanding of loyalty which will strengthen lawyers’ capacity to
function at a deep ethical level.
Chapter 8 recognises that the main context of lawyer-client conflict is in
relation to legal fees – ‘a lawyer’s interests are in conflict with their client’s interests
“the minute they begin work for a client, since their interest in making a larger
Inside Lawyers’ Ethics
Chapter 8 Conflicting Loyalties
© Cambridge University Press 2014
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income conflicts with the client’s interest in paying as little as possible for solving his
or her legal [problems]”’. This conflict must be lived with and is heavily regulated,
since it can never be prevented. But that is not necessarily the case with the second
and third varieties of conflicts of interest. Both of concurrent and successive conflicts
are real problems for only a few of the largest law firms. Most lawyers run a mile
from these dilemmas because they can see the potential for grief. But it is
unfortunately the case that some of the largest law firms seek to ‘manage’ these
conflicts by erecting so-called information barriers inside their offices. These barriers
are supposed to prevent partners, employee solicitors and all team members in one
part of the firm knowing anything about what partners in another part of the firm are
up to, in relation to the concurrent clients they have or where one team knows
something critical about a former client. The Courts and case law are very sceptical of
these barriers, but the largest firms, who market themselves first as businesses, do not
consider themselves as merely passive responders to that scepticism. Rather they have
gone on the offensive, directly influencing the Law Council of Australia in the
drafting of ASCR 10 and 11.
ASCR 10 and 11 attempt to set bright lines about client-client conflicts, over
which no law firm should cross. But their approach to client loyalty is based on the
ideal of adversarial advocacy alone. There is no recognition that law firms have
wider obligations represented in the other lawyer types of responsible lawyering,
moral activism and the ethics of care. Consequently, these rules represent a failure of
moral leadership. We need an awareness of personal character to underpin and
strengthen our preferences for one or more of these alternative approaches and to
choose between them or to reconcile them. Responsible lawyering, moral activism
and the ethics of care can all ground a deeper duty of loyalty that is ultimately in the
interests of clients and even the largest law firms.
Three case studies are used to illustrate these points: First, Allens Arthur
Robinson (now Allens Linklaters) and the drug companies; second, Blake Dawson
Waldron (now Ashurst) and the share buy-back; and third, the large law firm with
multiple clients.
Inside Lawyers’ Ethics
Chapter 8 Conflicting Loyalties
© Cambridge University Press 2014
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