FAQ 19

Q19. I have been instructed to advise in a professional negligence action against a solicitor. I do not know the solicitor but the firm of which is he is a member instructs me occasionally. Should I accept the instructions?

A19. If you have any current instructions from that firm, you should return the new instructions since there will be a clear conflict of interest between your client in the negligence action and the firm as a whole. The fact that the solicitor concerned himself has not instructed you is not relevant since the firm, as a whole, is likely to be involved.

If you have no current instructions from the firm, then you need consider whether paragraphs 603(f) and (d) of the Code are relevant. The first prevents you from acting where you have knowledge of confidential information from a previous client which would give your new client an undue advantage. Unless you are very familiar with the firm, this is unlikely to be relevant The second provision prohibits you from acting where there is some connection which might compromise your professional independence or cause some prejudice or appearance of prejudice to the administration of justice.

In this case, the difficulty is likely to be one of "appearance of prejudice". In looking at this question, you should consider how recent and frequent the instructions have been, the complexity of the cases involved and whether further instructions are likely to be forthcoming. The question to ask would be whether the client might understandably, albeit wrongly, think that your connection with the firm would affect your willingness to represent them with full independence. It is an area in which considerable caution is needed and, at the very least, the connection should be disclosed to the client to be sure that the client is content to continue the instructions.