Sitting in that Starbucks in early May with Arcadia’s chairman, Lord Grabiner QC, it would have been easy for Freshfields Bruckhaus Deringer’s head of corporate finance, Barry O’Brien, to build a case for representing Philip Green on his planned £9bn bid for Marks & Spencer (M&S). True, Freshfields had worked on and off for M&S for years and the bid was highly unlikely to go through without spirited resistance from the ailing retail icon. But the firm’s work for the client had been relatively minor, so it was an understandable call to clear the transaction at that time.
The position changed radically in late May when it became clear that a key issue for Green was a contract on which Freshfields had advised. So it is hard to see how under any reading of common law or the Law Society’s professional conduct rules – not to mention business sense – this did not put the magic circle firm in a conflict situation. And once you accept this, as the courts did last week, you are left with not just a theoretical or potential conflict but a very real one.
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