The paper explores the extent to which lawyer conduct rules that prohibit representation of multiple clients (whose interests potentially conflict) can be eased without compromising the rule of law. The focus is on the rules relating to concurrent conflicts between the interests of different clients (past, present or potential), although the scholarship on consecutive conflicts will help the analysis.
In recent times, a professional consensus in Australia of the importance of the conflict rules has been fragmenting and weakening. Large law firms, community legal centres, Legal Aid Offices, and regional and rural lawyers have either lobbied or expressed a need for a revision of the conflict rules. The instability in the legal profession’s views about the conflict rules has even had its effect in the ambiguous expression of the conflict rules now found in the Australian Solicitors Conduct Rules. In light of the professional fragmentation of support for the conflict rules, the paper will consider the competing range of interests and values that are in play in the shape of the conflict rules – access to law, lawyer remuneration, partisanship, client choice, client profile (‘the sophisticated client’) – and the extent to which they can be reconciled with the rule of law.