Unveiling the Hidden Conflicts: How Ongoing Fiduciary Duties Impact Legal Ethics

The core point: conflicts are evidence questions before they are conclusions

Fiduciary language is powerful. It expresses the idea that a solicitor must not treat client loyalty, confidential information or professional trust as optional. But in publication and complaint work, the safest approach is not to announce a breach first and find the evidence later. The safer method is to map the retainer, the information, the later matter and the route.

The supplied draft says Burnetts Solicitors LLP drafted a will in early 2022, with provisions concerning a business intended for the writer’s children. It then says the firm later acted for the writer’s landlord in a 2023 lease dispute involving the same business asset. The concern is that this later representation created a conflict, or at least a serious perception of one.

That is a legitimate public-interest issue if properly evidenced. But several distinct questions must be separated: was the writer still a current client, or a former client; what confidential information did the firm hold; was that information material to the lease dispute; was informed consent sought; were safeguards available; and what practical remedy is being sought?

The case study: will drafting, business interests and later adverse representation

The case-study concern can be stated without overreach. A person instructs a solicitor to prepare a will. The will is said to address a business asset and succession planning for children. Later, the same firm is said to have acted for the landlord in a dispute involving the business or lease connected with that asset.

If that sequence is proved, the central question is whether the later matter was sufficiently connected to the earlier retainer to create a conflict or confidentiality problem. The answer cannot be assumed from the existence of two separate matters alone. It depends on the facts.

The conflict test: what the documents need to show

The SRA framework gives the article a safer and more useful structure. Solicitors must act with integrity, independence and in the best interests of each client. They must also uphold public trust and confidence in the profession.

For conflicts, the practical test is not a single broad question such as “was there a fiduciary breach?”. A clearer test asks whether there was an own-interest conflict, a client conflict, or an adverse-interest situation involving confidential information held for a current or former client.

This approach is more precise than saying fiduciary duties continue indefinitely. Duties may survive the end of a retainer in important ways, especially confidentiality. But the legal and regulatory route still depends on the scope of the earlier retainer, what information was held, and whether the later work created a real conflict or confidentiality risk.

Information risk: why former-client confidentiality matters

Former-client information can be just as important as current-client instructions. A firm that has prepared a will may have seen private material about family intentions, assets, business value, succession planning, vulnerability, personal relationships or strategic concerns.

If the same firm later acts for a party whose interests are adverse to that former client, the question becomes whether it holds confidential information material to the later matter. If it does, the SRA Code points to effective measures creating no real risk of disclosure, or informed written consent by the relevant current or former client.

The route map: Legal Ombudsman, SRA, court or advice?

One reason these disputes become frustrating is that different bodies answer different questions. The Legal Ombudsman can consider service-related complaints about regulated legal service providers. The SRA deals with serious or repeated conduct concerns and public-interest regulatory issues. A court or specialist solicitor may be needed for negligence, injunction, costs, privilege, confidential information or will-validity issues.

That means a complaint can fail if it is sent down the wrong route, even where the underlying concern is serious. The same facts may need to be split into service, conduct, confidentiality, civil remedy and evidence-preservation routes.

The document trail: what a strong complaint should include

A conflict complaint is only as strong as its document trail. The core evidence is not the client’s conclusion that there was a breach. It is the sequence showing what work was done, what information was held, when the relationship ended, what later work was accepted, and how the firm assessed the risk.

Practical actions for clients

Clients do not need to become legal technicians, but they do need to ask the right questions. A strong complaint should avoid dramatic conclusions and focus on the facts the firm must answer.

The most useful questions are simple: did the firm hold my confidential information; was the later matter adverse to me; did the firm consider that risk; was consent sought; what safeguards existed; and which body has power to do anything about it?