Written by Regulatory accountability - conflicts of interest - former clients
A solicitor's former-client duties are not a matter of sentiment or professional courtesy. They turn on loyalty, confidential information, informed consent, proper safeguards and the facts of the later instruction. Where a firm has drafted a Will identifying a client's business as part of the estate, and later acts against that business or its interests, the question is not simply whether the old retainer has ended. The question is whether the later instruction creates a real professional conflict that should have been identified, evidenced and managed before the work began.
Snapshot
This article examines a public-interest concern raised by the source material: a law firm is said to have drafted a Will in April 2022 which identified a client's business interest, and later to have acted for a landlord in proceedings connected with that business. The legal point is not that every later adverse instruction is automatically improper. It is that former-client confidentiality, conflict management and public confidence require a disciplined audit trail whenever a later instruction may intersect with confidential information or objectives of the earlier retainer.
Reader note: this article is public-interest commentary and practical legal education. References to a named law firm are criticism and analysis based on the source material supplied. They should not be read as findings of fact, misconduct, dishonesty, unlawful conduct or professional wrongdoing by any named person, firm or body unless established by a competent court, tribunal, regulator, ombudsman, inquiry, audit report or official decision.
What the case study raises
The source material identifies a concern involving Burnetts Solicitors. It says the firm drafted a Will in April 2022 which identified the client's business as part of the estate, and that around sixteen months later the same firm acted for the client's landlord in proceedings said to be adverse to that business. That sequence, if accurately evidenced, raises an obvious professional question: did the later instruction place the firm in conflict with duties owed to a former client, or create a real risk that confidential information obtained during the Will retainer could become material to the later dispute?
The point should not be overstated. The mere fact that a firm once drafted a Will does not give a former client permanent control over every future instruction that might touch a listed asset. A Will is a snapshot of intentions and property at a particular time. Assets are sold, businesses change, relationships break down and new disputes arise. Professional rules do not impose an open-ended veto over unrelated future work.
But that is not the end of the analysis. A later instruction becomes more sensitive where it concerns the same business, the same commercial relationships, the same asset structure, or information the firm only obtained because the former client trusted it with private estate-planning instructions. The public-confidence issue is whether the firm had a documented basis for concluding that it could properly act, rather than simply treating the end of the Will retainer as the end of the ethical inquiry.
Core distinction. The allegation is not proved by chronology alone. It depends on the content of the old retainer, the information held by the firm, the scope of the later instruction, and whether any conflict or confidentiality risk was identified and managed.
Why Will drafting changes the analysis
Will drafting is not neutral clerical work. A solicitor asked to prepare a Will may receive information about family relationships, dependency, business ownership, company value, succession plans, debts, property interests, litigation risk, health, capacity, and the client's intentions for the transfer of wealth after death. Even where the final Will contains only limited information, the file may reveal much more than the document itself.
That matters because the later conflict analysis is not confined to what appears on the face of the Will. The relevant question is whether the firm holds confidential information from the former client which is material to the later matter. If the later dispute concerns the same business identified during estate planning, it is reasonable to ask what information was obtained, who within the firm had access to it, and whether any safeguards were put in place before the later instruction was accepted.
There is also a loyalty dimension. A client who discloses sensitive information for estate-planning purposes is entitled to expect that the information will not later be deployed, even indirectly, in a way that undermines the client's interests. That expectation is not a guarantee that the firm can never act for anyone else. It is a demand for care, records and justification where the later instruction creates a credible appearance of adversity.
The later work concerns a wholly unrelated matter, no material confidential information is held, and the firm can evidence the conflict check.
The later work concerns the same business, its landlord, succession plans, financial position or vulnerabilities discussed during the Will retainer.
Conflict, confidentiality and safeguards
The SRA framework separates several related duties. Solicitors must act in the best interests of each client, uphold public trust and confidence, act with independence and integrity, and avoid acting where there is a conflict of interest or a significant risk of one. The Code also protects the affairs of current and former clients, and deals expressly with acting where a current client has an interest adverse to a former client and the firm holds confidential information material to the later matter.
That structure is important. A former-client conflict is not assessed by instinct. It is assessed by questions: what confidential information is held; whether it is material; whether the later client's interest is adverse; whether effective measures remove any real risk of disclosure; and whether informed written consent has been obtained where the rules permit reliance on consent. A firm that has done that work should be able to explain it. A firm that has not done that work leaves a gap in the regulatory record.
For firms, the issue is also systemic. A conflicts check should not be a memory test carried out by whichever fee-earner opens the new file. It should be a documented process capable of identifying former-client links, associated entities, related assets and confidential information. That process matters most when the new matter is commercially adverse and the old matter involved private financial or succession planning.
Search former-client records, connected parties, business names, asset descriptions and fee-earner knowledge.
Decide whether confidential information is held, whether it is material, and whether interests are adverse.
Keep a clear audit trail of the decision, any consent, and any practical safeguards relied upon.
Fiduciary duty after the retainer
The original draft framed the issue as a continuing fiduciary duty after the Will retainer ended. That is a legitimate public-interest theme, but it needs careful wording. Former-client obligations do not usually operate as a broad, indefinite duty to protect every former client's commercial interests forever. The more precise issue is whether duties of loyalty, confidentiality and conflict avoidance continue in ways that restrict later adverse work where the firm holds relevant confidential information.
Prince Jefri Bolkiah v KPMG [1999] 2 AC 222 remains the leading authority commonly cited for the protection of confidential information in former-client conflict cases. The practical lesson is not that a former professional adviser can never act against a former client. It is that the burden falls heavily on the professional adviser to show that there is no real risk that confidential information will be disclosed or misused.
Applied to a Will-drafting scenario, the better question is therefore evidential. Did the Will file contain information about the business, its ownership, value, succession, vulnerabilities, liabilities, landlord relationship or intended inheritance? Was any of that information material to the later landlord dispute? Did the firm obtain informed consent, or put in place safeguards that genuinely removed the risk? If those questions cannot be answered from the file, the concern is not merely presentational. It becomes a records, governance and public-confidence problem.
The evidence that would decide it
A publishable analysis must separate suspicion from proof. The chronology may justify scrutiny, but the decisive material would be documentary: the client-care letter, the Will instructions, attendance notes, draft Will correspondence, asset schedules, internal conflict checks, emails opening the later file, any information barriers, any consent correspondence, and the pleadings or correspondence in the landlord dispute.
That evidence would allow the issue to be tested without theatrical language. If the later matter was genuinely unrelated to confidential information from the Will retainer, the firm may have a defensible answer. If the later matter touched information obtained in confidence, or if no meaningful conflict check was carried out, the concern becomes substantially stronger. Evidence turns an allegation into a structured regulatory question.
What exactly was the firm instructed to do, and what information did it receive about the business?
What was the landlord matter about, and did it engage the same business, asset, relationship or vulnerability?
Was the information held from the Will file capable of being material to the later dispute?
Were conflict checks, information barriers, consent decisions and supervisory sign-off recorded before work began?
Complaint route and public confidence
The route matters. A service complaint about delay, communication, cost or poor client care will usually begin with the firm and may later fall within the Legal Ombudsman's process. A serious concern about professional conduct, conflict of interest, confidentiality, misleading conduct or failure to act in a client's best interests may be capable of report to the SRA. Those routes can overlap factually, but they do different work and require different evidence.
For a former client, the strongest first step is not a broad accusation. It is a short, dated chronology with documents attached and a request for the firm to explain the conflict assessment. The key question is simple: what process was followed when the later instruction was accepted, and how did the firm satisfy itself that former-client confidentiality and conflict rules were not engaged, or were properly managed?
The public-confidence point is wider than one file. Clients disclose sensitive information because they trust solicitors to protect it. If a law firm later appears on the opposite side of a matter connected with that information, the profession should be able to show that the issue was not ignored. A documented answer may protect the firm. Silence, vagueness or missing records do the opposite.
Source anchors
These source anchors support the regulatory framework discussed above. They do not prove the contested facts of the case study or establish professional misconduct by any named firm.
Primary regulatory statement of public trust, independence, integrity and acting in each client's best interests.
Current conflict, confidentiality and former-client provisions that frame the practical analysis.
Firm-level governance, systems, controls and records relevant to conflicts checking and supervision.
Consumer-facing guidance on when the SRA may investigate serious conduct concerns and what evidence it needs.
Guidance on service complaints, firm complaints first, and the documents needed when bringing a complaint.
The closing point
A former-client conflict is not proved by indignation, and it is not defeated by saying the old retainer ended. The proper test is disciplined and evidential: what information was held, why it mattered, what later work was accepted, what safeguards existed, and where the decision was recorded. That is how public concern becomes a professional accountability question.
Conflict and evidence decision point
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Map the old retainer, later instruction, confidential information and missing records.
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Former retainer, later work, confidentiality and regulatory route.
Records needed to test the concern before escalation.
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