Background 

Ms W provided advice to a client, Ms X, about a relationship property agreement following her separation from Mr Y. During this time Ms W was provided with a copy of the relationship property agreement and a document titled ‘background’ containing the history of Ms X and Mr Y’s relationship. Ms W provided her advice over email and the retainer ended shortly after that. The total duration was approximately five days.

About nine months later, Mr Y approached Ms W’s firm for advice about the same relationship property agreement. He was referred to Ms W who took his instructions, provided advice and wrote to Ms X on his behalf.  

On receiving Ms W’s letter, Ms X questioned why she was acting for Mr Y, given that she had previously advised her on the same matter. Ms W immediately spoke with her supervising partner, explained that she had not made the connection and advised that she would not be able to act for either party. She assured Ms X that none of the information received earlier had been disclosed to Mr Y.  

Ms X complained that Ms W caused her extreme distress by writing to her on behalf of Mr Y. It was submitted that, in failing to check for any conflicts, Ms W had breached the RCCC and that she provided contradictory advice to both parties.  

Standards Committee decision 

When considered by a Standards Committee, it was concluded that Ms W did not breach the RCCC. It looked to the fact that Ms W immediately stopped acting for Mr Y once she was aware of the conflict and that no confidential information was disclosed. It considered the difference in advice could be explained by the different accounts provided to her from Ms X and Mr Y about their relationship.  

Issue on review 

Ms X applied to the LCRO for a review of the decision, arguing that the Committee made an error in finding that Ms W had not breached any of the RCCC, specifically rule 6.1.  

Duty not to act against former client  

The LCRO did not consider that rule 6.1 of the RCCC applied to this case as they were of the view that this rule addresses situations where a lawyer represents two clients simultaneously in the same matter. Instead, the complaint was dealt with under rule 8.7.1 of the RCCC, which provides that a lawyer must not act against a former client where there is a more than negligible risk of disclosure of confidential information that would adversely affect their interests. 

The LCRO considered that this rule is expressed in absolute terms and places an onus on lawyers receiving instructions from new clients to carry out a conflict check. Conducting a search of records should be a straightforward and routine function of a robust electronic document management system.  

The LCRO noted that Ms W did not conduct a conflict check when instructed by Mr Y and, had she done so, it is likely that the connection between both parties would have been obvious. The LCRO was confident that Ms W would have quickly declined to act in this scenario.

When considering whether Ms W ought to have remembered the advice she provided to Ms X or be reminded about the engagement when prompted with details from Mr Y, the LCRO accepted that a busy lawyer might understandably forget a brief retainer. However, there could be “no doubt” that in accepting instructions to act for Mr Y, that Ms W had breached rule 8.7.1 of the RCCC.  

The LCRO reversed the Committee’s finding that Ms W’s conduct did not include a breach of rule 8.7.1 of the RCCC. Otherwise, the decision to take no further action was confirmed.  

No disciplinary response required 

The LCRO understood Ms X’s dismay at receiving the letter from Ms W on behalf of Mr Y and acknowledged that she was right to express concern about the risk of disclosing personal information. However, the LCRO took the view that Ms W’s conduct was in the category of oversight rather than recklessness.  

The LCRO unreservedly accepted Ms W’s assurance that nothing was disclosed to Mr Y, since she had forgotten she had acted for Ms X. The LCRO was also satisfied that Ms W’s conflict checks since the event would be meticulous and factored in her history of no previous complaints.  

While the LCRO was disappointed that Ms W had not apologised to Ms X after realising her mistake, they were not persuaded that Ms W’s breach of the RCCC required a disciplinary response. “Any disciplinary response to a lawyer’s conduct lapse must underscore the critical importance of consumer protection. However, the response must also be proportionate and reasonable,” the LCRO said.