2.3 Conflicts, Undertakings and Duties to the Court

Two different conflict rules — learn both

SQE1 candidates lose marks by treating "conflict" as one blob. The Codes use two defined ideas, in the same wording for individuals and for firms.

Official sources: SRA Code of Conduct for Solicitors and SRA conflicts guidance.

Own-interest conflict — paragraph 6.1

You do not act if there is an own-interest conflict or a significant risk of one. The SRA's examples map cleanly onto exam vignettes:

• Financial interest: a client asks you to diligence a company in which you or your spouse hold shares.
• Personal relationship: you are asked to advise on a claim against a relative, a close friend, or a co-venturer.
• Your role as an employee: an in-house solicitor is asked to advise on a dispute involving the employer in a way that collides with the solicitor's own employment interest, or a colleague asks you to "go easy" on a claim against the firm.
• Your own conduct: the wrong advice has already been given, or a deadline has been missed. Putting matters right can create an own-interest conflict because the firm now has an interest in minimising a negligence claim. The SRA's "putting matters right" guidance is the companion piece: be honest with the client (Code 7.11), explain the likely impact, and do not keep acting if your interest in defending the mistake fights the client's interest in a clean negligence claim.

Exam instinct: if the right advice is "you may have a claim against us," you are usually off the file for that aspect. You notify the client, the COLP, and insurers as the firm's procedures require. You do not draft the client's witness statement about your own error.

Client conflict — paragraph 6.2

You do not act on a matter, or a particular aspect of it, if you have a conflict of interest or a significant risk of one, unless:

• the clients have a substantially common interest in the matter or aspect; or
• the clients are competing for the same objective;

and all of the following conditions are met:

1. all the clients have given informed consent, given or evidenced in writing;
2. where appropriate, you put in place effective safeguards to protect confidential information;
3. you are satisfied it is reasonable to act for all the clients.

Substantially common interest means a clear common purpose and a strong consensus on how to achieve it (two clients buying a business together; joint tenants taking a lease). If you can already see substantive negotiations between them, you are normally past this exception.

Competing for the same objective means an asset, contract or business opportunity that, if attained by one, is unattainable to the other — for example competing bidders in a structured auction. The SRA's definition of "objective" expressly does not include a public takeover.

Reasonableness looks at bargaining power, vulnerability, how much negotiation remains, any genuine benefit (speed, cost), and the risk of leaking confidential data. A consumer and a corporate landlord with an in-house team are rarely in the same boat.

You must still be able to act in each client's best interests. If acting for both means you cannot negotiate as you would for a single client, it is often not reasonable to act.

Limited retainers can remove a conflict risk if you only advise on non-contentious aspects both parties already agree. The SRA expects limited retainers to be entered into at the clients' request, not as your device to avoid giving risk warnings, especially where the clients are not sophisticated commercial entities.

Litigation and conveyancing patterns SQE1 favours

• Litigation: you cannot act for both sides of a dispute. Landlord and tenant already fighting over a break clause are the easy "no". A "we just want you to write up our settlement" pair still needs a hard look: if the deal is unfair or one party is vulnerable, drawing the document can itself be improper.
• Conveyancing: acting for seller and buyer of the same dwelling is usually a 6.2 problem (price, defects, completion). Acting for borrower and institutional lender on a standard residential mortgage can be possible where there is no actual conflict and terms are standard, but SQE1 often introduces a gift, an undervalue, a defect known to one party, or a lender requirement the borrower will not meet — at which point you cannot keep both.
• Related matters: you act for Client A on a share sale and Client B wants you to fund the buyer. Even if the files have different names, 6.2 asks whether they are the same or a related matter.

Decline early. The SRA's own guidance says it is better not to take the second client on than to extract yourself halfway through.

Undertakings — personal, and they must be performed

The SRA Glossary definition, which you should be able to apply even if you are not asked to recite it word for word, is:

a statement, given orally or in writing, whether or not it includes the word "undertake" or "undertaking", to someone who reasonably places reliance on it, that you or a third party will do something or cause something to be done, or refrain from doing something.

Paragraph 1.3 of both Codes: you perform all undertakings given by you, and you do so within an agreed timescale or, if none was agreed, within a reasonable amount of time.

Consequences that matter for SQE1:

• The obligation is professional and personal to the giver. "My client did not put me in funds" is not a defence to an unqualified undertaking to pay. If you cannot control performance, qualify the undertaking ("we undertake to pay £X from completion monies if and when received from our client").
• You do not need the word "undertake". An email saying "you can take it that the charge will be discharged on completion" can be an undertaking if the recipient reasonably relies on it.
• Conveyancing is the natural habitat: undertakings to discharge a mortgage, to hold deeds to order, to send a sealed TR1. Give only undertakings the firm can perform; check the redemption figure; diarise the discharge.
• Harcus Sinclair LLP v Your Lawyers Ltd [2021] UKSC 32 confirms that the High Court's inherent jurisdiction to enforce solicitors' undertakings as officers of the court under section 50 of the Solicitors Act 1974 does not extend to undertakings given by, or on behalf of, incorporated practices (they are not themselves officers of the court). The SRA's guidance is equally clear that this does not weaken paragraph 1.3: breach still attracts disciplinary action against the solicitor, the firm, members and/or directors. Individual solicitors remain officers of the court.

If you are asked to give an undertaking you cannot perform, you refuse. If a supervisor tells you to give it anyway, you still refuse: independence and integrity are not optional because the client is in a hurry to exchange.

Duties to the court — paragraphs 1.4 and 2.1 to 2.7

Paragraph 1.4: you do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or by allowing or being complicit in the acts or omissions of others (including your client).

Section 2 then specifies litigation standards:

• 2.1 — do not misuse or tamper with evidence, or attempt to.
• 2.2 — do not seek to influence the substance of evidence, including generating false evidence or persuading witnesses to change their evidence.
• 2.3 — do not provide or offer any benefit to witnesses dependent upon the nature of their evidence or the outcome of the case.
• 2.4 — only make assertions, statements, representations or submissions to the court or others which are properly arguable.
• 2.5 — do not place yourself in contempt; comply with court orders that place obligations on you.
• 2.6 — do not waste the court's time.
• 2.7 — draw the court's attention to relevant cases and statutory provisions, or procedural irregularities of which you are aware, that are likely to have a material effect on the outcome.

The public-interest Principles sit behind every one of these paragraphs. A client who wants you to "just put it as high as you can" does not authorise a claim that is not properly arguable. That is also the bridge into the SLAPPs warning notice in the next section.

Witness coaching versus legitimate preparation

Legitimate preparation includes:

• explaining the process, the oath, and the difference between evidence-in-chief and cross-examination;
• taking a proof of evidence of what the witness actually recalls, in their own words;
• showing the witness documents they have seen or would have seen in the events, so their memory is placed in context;
• warning about perjury and the need to tell the truth even if it hurts the case;
• explaining that they must not discuss evidence with other witnesses in a way that contaminates recollection.

Coaching (a 2.2 breach) includes suggesting a different recollection, rehearsing a scripted answer that does not reflect memory, asking a witness to omit an inconvenient fact, or generating a statement the witness does not actually support. Paying a witness a bonus if the client wins is a 2.3 problem even if the evidence is honest.

Documents: you do not alter, suppress, or "lose" a disclosable document. If the client has already created a false document, you cannot deploy it. If you become aware that a statement of truth you put before the court is false, you cannot leave it there; 1.4 and the duty to the court require correction, and you may have to cease acting.

Putting a litigation or conveyancing file together

A typical combined SQE1 question: you act for a seller. You have given an unqualified undertaking to the buyer's solicitor to discharge the only charge on completion. On the morning of completion the client admits a second unregistered loan and tells you not to mention it because "it will delay the move." You now have:

• a court / third-party honesty problem if you complete as if the title will be clear (1.4, Principles 1, 4 and 5);
• an undertaking you cannot honestly perform as originally given (1.3);
• possibly an own-interest overlay if you are tempted to hide the mistake to protect the firm.

The competent newly qualified response is to stop, tell the client you cannot complete on a misleading basis, notify the other side that you cannot currently give a clean discharge picture, and take supervisor/COLP advice. You do not "get it through and sort the second charge later."