whether it is in the interests to proceed with concurrent representation clients’ with the risk despite how minimal of a conflict. – – Factors include: More sophisticated means the client is Client’s sophistication – more able to make decisions by themselves. A less sophisticated client will rely more on a client Reliance – views. A lawyer should always encourage Independent Advice – independent legal advice to the client no matter how sophisicated per Mantonella Pty Ltd v Thompson Contentious Matters A lawyer cannot represent parties in litigation that do not share the same Scope – interests or the outcome of the litigation whether criminal or civil. This is because one client suffers at the others expense and the duty of loyalty cannot be satisfied. Re a Firm of Solicitors **Particularly in criminal Cases A lawyer must accept the inherent risk of acting for both parties and Risk of acting – in deciding to accept a retainer the lawyer must be prepared to accept the risk of – negotiating both sides to the litigation. Must accept that the Court may seek to restrain Continued Representation – the use of confidential between the clients and the risk of negligence, cost and delay. PCPR 8.1B Lawyers only have to withdraw if there is a Material Conflict – conflict PCPR Rule 8.1B(i); and material – The practitioner that such a Reasonable Belief reasonably believes – conflict is likely to arise Rule 8.1B(ii) – A lawyer should never represent both parties to contentious Criminal Matters – criminal matter. It is permissible to represent multiple parties of the Joint Representation – same matter in joinder to Reduce Costs Strategic legal advantages in plea bargins etc The cases not adequately separated could mean that possibility of Risks – different verdicts for the defendant may be left unexplored. Such as: It may restrict the lawyer from Raising individual issues of character – raising issues of character of one defendant for fear of casting doubt over the character of the other. It is difficult to determine Individual Defendants Interests Diverging – early how the interests of each defendant may diverge during the course of the proceedings. Client consent to the Clients want reduced costs and forego strategic – conflict carries little weight especially in criminal cases due to criminal
whether it is in the clients’ interests to proceed with concurrent representation with the risk – despite how minimal – of a conflict. Factors include: Client’s sophistication – More sophisticated means the client is more able to make decisions by themselves. Reliance – A less sophisticated client will rely more on a client views. Independent Advice – A lawyer should always encourage independent legal advice to the client no matter how sophisicated per Mantonella Pty Ltd v Thompson Contentious Matters Scope – A lawyer cannot represent parties in litigation that do not share the same interests or the outcome of the litigation whether criminal or civil. This is because one client suffers at the others expense and the duty of loyalty cannot be satisfied. Re a Firm of Solicitors **Particularly in criminal Cases Risk of acting – A lawyer must accept the inherent risk of acting for both parties and in deciding to accept a retainer – the lawyer must be prepared to accept the risk of negotiating both sides to the litigation. Continued Representation – Must accept that the Court may seek to restrain the use of confidential between the clients and the risk of negligence, cost and delay. PCPR 8.1B Material Conflict – Lawyers only have to withdraw if there is a material conflict – PCPR Rule 8.1B(i); and Reasonable Belief – The practitioner reasonably believes that such a conflict is likely to arise – Rule 8.1B(ii) Criminal Matters – A lawyer should never represent both parties to contentious criminal matter. Joint Representation – It is permissible to represent multiple parties of the same matter in joinder to Reduce Costs Strategic legal advantages in plea bargins etc Risks – The cases not adequately separated could mean that possibility of different verdicts for the defendant may be left unexplored. Such as: Raising individual issues of character – It may restrict the lawyer from raising issues of character of one defendant for fear of casting doubt over the character of the other. Individual Defendants Interests Diverging – It is difficult to determine early how the interests of each defendant may diverge during the course of the proceedings. Clients want reduced costs and forego strategic – Client consent to the conflict carries little weight especially in criminal cases due to criminal