On to my first point, if we examine the words ‘informed consent’ it means ‘it is permission granted in full knowledge of the possible consequences’ according to the Oxford dictionary.
A conflict of interest is defined in the CCBE Code 2006 which is a code of conduct for lawyers in the EU which is adopted at National level in Scotland. Article 3.2.1 of the 2006 Code states “a lawyer may not advise, represent or act on behalf of two or more clients in the same manner if there is a conflict or a risk of conflict between the interests of the client.”
Furthermore, The Solicitors (Scotland) Practice Rules 1986 (the conflict of interest rules) states in rule 3 that ‘a solicitor shall not act for two or more parties whose interests conflict’. This does not explicitly state a potential conflict which may arise, just a conflict that has already happened. In Scotland, a solicitor may act for clients with potentially conflicting interests if it is permitted by law, applicable rules of professional conduct or by informed consent.
As briefly stated, there are two types of conflict, potential and actual. Lawyers simply cannot act for two or more clients who interests conflict if the conflict is an actual conflict. Thus, set out in Frank’s argument that actual conflicts are personally barred is irrelevant as informed consent does not exist in this demeanour.
The said Rule 3 of the 1986 Rules has exceptions which are extensive and wide ranging. More specifically, exception 4 is the established clients exception which is where the clients know what expense they will receive and the competence of the lawyer.