Written by Conflicts of interest can arise in numerous areas of legal practice, yet they are often overlooked in the context of will drafting. As the person making a Will (the testator), one naturally expects confidentiality, loyalty, and protection of one’s interests from the solicitor who prepares and stores that important document. However, a firm that once drafted and held a Will may later choose to act for an opposing party—sometimes to the testator’s detriment. In this article, I explore the concept of being “conflicted out,” drawing on my own experience to illustrate why this issue matters.
My Experience
I engaged Burnetts Solicitors to draft and store my Will. Some time later, they represented my landlord in a dispute involving an asset that was specifically addressed in the Will they had prepared for me. The result was devastating: the value of that asset was effectively destroyed.
In hindsight, it is clear to me that Burnetts held privileged information about my estate planning. Even if they believed the formal retainer for will drafting had ended, they were still storing my Will—arguably maintaining a connection with me that could raise professional conduct concerns. This episode crystallised for me the far-reaching impact of conflicts of interest in legal practice.
Understanding Conflicts of Interest
Under the Solicitors Regulation Authority (SRA) Code of Conduct in England and Wales, solicitors must avoid situations where their duty to one client conflicts with (or might conflict with) their duty to another, or where their interests conflict with those of a client. Two key duties stand out here:
- Duty of Confidentiality Even once the principal work is done, a solicitor must not disclose or misuse confidential information obtained during the course of representing a client.
- Duty of Loyalty A solicitor should not place themselves in a position where their representation of a new client undermines their ability to remain loyal to a former client—especially when the new matter is directly related to the information or subject of the earlier engagement.
How Wills Come into Play
A Will is a deeply personal document. By preparing and storing it, the solicitor often gains insight into:
- The testator’s finances, assets, and future plans.
- Family dynamics and potential vulnerabilities.
If, after preparing a Will, the same firm represents another party whose interests are adverse to the testator’s in relation to the same asset or estate, there is a tangible risk of misusing or appearing to misuse that privileged knowledge. Even if the firm genuinely avoids using the information, the perception alone can undermine the integrity of the legal system.
Why This Matters: The Real-World Impact
My own experience laid bare the potential harm. When a law firm that drafted and stored my Will took on my landlord’s case against the very asset in that Will, the proceedings significantly reduced its value.
- Erosion of Trust: I expected the firm that held my Will to avoid situations that might compromise my interests.
- Financial Consequences: Seeing a crucial asset devalued or lost due to legal action pursued by that same firm was profoundly disheartening.
- Regulatory Concerns: From my perspective, the matter raised questions about whether the firm had properly handled conflict checks and ongoing confidentiality obligations.
The Solicitor’s Perspective
Many firms argue that once the Will is signed and finalised, their retainer is complete—particularly if they provide Will storage merely as a courtesy. They may insist that:
- There Is No Ongoing Retainer Unless the client actively seeks further legal advice, the solicitor may consider the relationship concluded.
- Limited Administrative Role They might view holding a Will in storage as a purely administrative service, distinct from an active solicitor–client relationship.
- Separate, Unrelated Matter The firm could claim that the dispute they have taken on is unrelated to the confidential details of the testator’s estate, even though it concerns the very asset set out in the Will.
In my situation, however, I was left feeling that Burnetts had chosen to act for my landlord on the one hand while still having privileged insights into my estate on the other.
Potential Remedies if You Face a Similar Conflict
- Raise the Conflict Write to the firm, detailing the conflict you see and the ways in which it might compromise your interests.
- Seek Independent Legal Advice An impartial solicitor can assess whether there has been a genuine breach of confidentiality or loyalty.
- Consider a Complaint to the SRA If you suspect serious professional misconduct, you may lodge a complaint with the Solicitors Regulation Authority.
- Document All Detriment If the conflict causes or exacerbates financial loss, keep records of your losses, communications with the firm, and any relevant case details.
Conclusion
Conflicts of interest can arise in unexpected ways—particularly where a law firm has drafted a Will and later acts for someone whose interests clash with the testator’s. From first-hand experience, I know how distressing it can be to discover that the very firm entrusted with personal and financial details is now potentially using, or has access to, that information for the benefit of someone else.
Such scenarios highlight the importance of robust conflict checks, transparent communication, and an unwavering commitment to professional ethics. Whether the matter is resolved in private or escalated through formal channels, it is crucial for those affected to understand their rights and remedies when solicitors fail to navigate conflicts of interest properly.
Disclaimer: This article offers general guidance based on personal experience and should not be construed as formal legal advice. If you believe you have encountered a conflict of interest or professional misconduct, you should consult an independent solicitor or seek guidance from the SRA.