England has always lagged behind the US in its focus on conflicts of interest. That is not necessarily a source of criticism – there is, as yet, no English decision which resembles the 1998 Texas case that raised the question of whether the law firm defendant acting on a transaction represented the entity, the individual investors, or both. The law firm’s engagement letter made clear that the entity was the client. The individual plaintiff investor claimed he never received the letter (notwithstanding evidence of posting) and alleged that the firm never told him it was not representing him personally. The jury sympathised with his assertion that in consequence he had not received legal advice, and awarded him damages of $59.5m (£32.9m).
Nevertheless, the level of awareness of conflicts problems in this jurisdiction has increased since the House of Lords looked at conflicts for the first time in Prince Jefri Bolkiah v KPMG [1999]. Conflicts generally fall into two categories: existing client conflicts and former client conflicts. The principles are fundamentally different.
