Intolerable strain

For the last quarter of a century, regulation of the solicitors’ profession has been guided by Lord Diplock’s dicta in Swain v The Law Society [1983] 1 AC 598, [1982] 2 All ER 827 that rules should be made in the interests of “that section of the public that may be in need of legal services”. Today, that section of the public is no longer homogeneous, and its diverging interests place intolerable strains on a single regulatory regime. Public interests not only diverge, but can collide.

The rule on conflict that protects the interests of the private client in a matrimonial matter, or a small business dealing with its landlord, can act against the interests of sophisticated corporate clients, wishing to instruct a particular firm because of the scale, expertise, quality and global reach of its specialist services. For corporate clients information barriers may be sufficient to protect their interests. A rule that is appropriate to protect an unsophisticated client may