Conflict of interest and duty

If a barrister has a more than trivial ownership interest in an LDP, then, as explained above, there is scope for a conflict or potential conflict to arise between a barrister and his client, where the LDP is acting for another party or for a person with a conflicting interest. Save in exceptional circumstances, a barrister must not act or continue to act where there is a conflict or possible conflict between his interests and those of his client or his duty to his client.

Where the barrister has only a relatively small interest in the LDP, it is unlikely to be realistic for the barrister to agree a protocol with the LDP in the way that an employee or manager of the LDP can and should do (see para 12(2) above). It is the responsibility of the barrister to ensure that conflicts are avoided. However, if the barrister is a significant shareholder, it may be appropriate for such a written agreement to be made, to ensure that any conflicts of interest and duty that arise can be resolved easily and without prejudicing either client. It is the barrister’s responsibility, if he is considering owning a significant shareholding in an LDP, to take appropriate steps to prevent any conflict arising that prejudices the interests of his client. In a case where a later conflict was known to be a real possibility, that would require the barrister to disclose his interest in the LDP (and where material the extent or nature of the interest) and advise the client of his right to instruct another barrister, so that the client can decide at an early stage whether or not to instruct (or continue to instruct) the barrister. Any shareholding of over 10% or which constitutes more than 5% of the barrister’s portfolio is always likely to be regarded as significant. For these purposes, a significant shareholding is a holding of such an amount, or with such rights, that a reasonable person with knowledge of the facts would be likely to conclude that there was a real risk of the barrister not being able wholly to disregard his interest in acting for his client.

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