Conflicts of interest — SQE1 Legal services question
A worked single-best-answer question on conflicts of interest, with why each wrong option is wrong — the way SQE1 traps candidates.
Dorothy, aged 84, has been a client of Hamish, a solicitor, for twenty years. She asks Hamish to draft a new will which leaves £150,000, about a quarter of her estate, to Hamish personally 'for all his kindness'. Dorothy has full mental capacity and is adamant about the gift. She offers to sign anything Hamish needs to confirm that she wants him to act.
How should Hamish deal with Dorothy's instructions?
- AHe has an own interest conflict or a significant risk of one, so he should not draft the will and should advise Dorothy to take independent legal advice.
- BHe may draft the will provided Dorothy gives informed consent, given or evidenced in writing, to his acting.
- CHe may draft the will provided a partner in his firm reviews and approves it before execution.
- DHe may draft the will without any concern, because Dorothy has capacity and is free to leave her estate as she wishes.
- EHe may draft the will provided the gift to him is less than half of the value of the estate.
Show answer and reasoning
Rule: A solicitor must not act where there is an own interest conflict or significant risk of one, and client consent cannot cure it.
- B Informed written consent is a condition of the paragraph 6.2 client conflict exceptions; there is no consent exception to an own interest conflict. (wrong rule)
- C Review by a colleague in the same firm does not remove the conflict, since the firm's own member benefits; the advice should be independent. (right rule, wrong facts)
- D Dorothy's testamentary freedom does not remove Hamish's own interest conflict. (wrong rule)
- E There is no percentage threshold below which a gift to the drafting solicitor is acceptable. (wrong rule)
Source: SRA Code of Conduct for Solicitors, RELs and RFLs, para 6.1; SRA guidance, Drafting and preparation of wills