These guidelines relate to those few situations where solicitors can properly and lawfully agree to act on behalf of two parties to a case or transaction. The guidelines address the extra precautions that firms should take in those circumstances to ensure that no conflict of interest arises and there is no breach of the duty of loyalty, the duty to make full disclosure, and the duty of confidentiality owed to each client.

Ethical barriers, sometimes referred to as ‘Chinese walls’, must be put in place. Each firm should take into account its own circumstances, and the particular circumstances of the clients and the transaction in question, to ensure that proper measures are in place.

Clearly, for practical reasons, it would not be possible to have effective ethical barriers in a sole practitioner/sole principal firm or in other small firms. Accordingly, these guidelines only have relevance for larger firms.

Internal overseeing committee
The solicitors’ firm should have in place a person or committee to oversee conflicts of interest and the operation of measures to regulate them. Such a person or committee should have authority over all aspects of the operation of the ethical barriers. All appropriate cases should be referred to that person or committee and all decisions made by them should be formally recorded.

They should have power to rule that procedures are insufficient, generally or in a particular case, and direct that additional measures be taken. They also should have power to decide, in particular cases, that the measures that are in place are insufficient to protect the parties and that the firm should not act in the case or transaction being reviewed.

The person or committee should also be available to members of the firm for consultation and the provision of advice. Where such person or a member of such committee is one of the solicitors acting in a conflict situation, he/she should be replaced by another uninvolved person or, in the case of a committee, should withdraw from all discussions of, and rulings on, the conflict in question.

No access to confidential information
Arrangements should be put in place to ensure that no solicitor acting on behalf of either of the parties will have access to confidential information in relation to the interest of the other party to the conveyancing or other case or transaction. Files that are subject to such measures should be kept in a secure location under the control of the principal solicitor acting in the matter.

Clients should be consulted as necessary, and their specific authority in writing should be obtained. Where the particular situation is subject to regulation, there must be full compliance with the regulations.

Separate specialist advices/separate secretarial support
To the extent that specialist experts and secretarial support are needed by the solicitor or team of solicitors, these should not be provided to both sides within the firm by the same individuals, firms or organisations.