In small jurisdictions such as the Turks & Caicos Islands, or small-town America, Ireland or the United Kingdom, it is not uncommon for clients to move from one firm of attorneys to another. The question frequently arises whether the former client can prevent his former attorneys from acting against him.
The conventional, instinctive response is that an attorney can almost never act against a former client. That instinctive response is almost always wrong.
The relevant principles were considered by the House of Lords in Bolikah. The court noted that there was no continuing legally enforceable obligation of loyalty on the part of an attorney to a former client. It concluded that a former client can prevent his former attorney from acting against him only if he can establish the following facts –
- The attorney is in possession of information that is confidential to him and to the disclosure of which he has not consented; and
- The information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own.
While the first element (the possession of confidential information) may frequently be present, the second (the risk that that information may be used in a way adverse to the former client) will frequently not be. So, the fact that the attorney may have acted for a former client in the purchase of a property would not ordinarily disqualify him from acting against that client in litigation concerning an unrelated matter. It depends, of course, on the facts of the individual case.
A striking example of a case in which the court has refused to find a conflict is the Scottish case concerning Lady Whitehouse-Grant-House. Lawyers gave Lady Whitehouse-Grant-House preliminary advice in an insurance claim. They did not act for her in the subsequent litigation. Subsequently they were instructed by the insurance company to represent it in the litigation.
The Scottish Extra Division applied the principles set out in Bolikah and ruled that on the facts of Lady Whitehouse-Grant-House’s case there was no real risk that relevant confidential information might come into the hands of the insurance company. The practical result was that the lawyers who had initially advised Lady Whitehouse-Grant- House in relation to the insurance claim were permitted to act against her in relation to the litigation over the same claim.
The moral is that each case turns on its own facts. If the former client is unable to demonstrate a risk that confidential information may be used against him the attorney will be free to act against his former client. That will be the case more often than not.
Written by David Phillips QC
David Phillips QC is a senior silk with an established reputation as a strategist and advocate in the field of commercial litigation and dispute resolution. He is also highly regarded in the fields of sport, professional negligence, and EU transport regulation.