A conveyancing file opens in March for two joint buyers with a mortgage offer and a completion date in sight. In August one of them telephones to ask whether her share can be protected against the other, and the fee earner answers before working out what the question means.
Nothing on that file records what changed. The conflict search ran at the door in March and came back clear, and the matter has run since on the assumption that March's position still holds. It does not hold. Two people buying a house together in the spring are working out in the summer how to protect themselves from each other, and the firm is still acting for both.
Take an illustrative practice of ten fee earners carrying three hundred live matters. If one in six is a joint retainer, fifty files depend on two clients wanting the same thing for as long as the retainer runs, and nobody checks that they do.
The check at the door and the condition that has to hold
The conflict search your firm runs at take on answers a narrow question about a moment in time, being whether the names in front of you stop you acting today. Absence of conflict is a different thing, because it has to hold for the whole life of the retainer and it can fail long after the file opens without anybody doing anything wrong. The regulatory expectation is straightforward in principle. A firm must not act where there is a conflict of interest between two current clients, or a significant risk that one will arise, and the narrow exceptions rest on a substantially common interest or on competing bids for the same objective, with informed written consent and workable safeguards. The consent your buyers gave in March was consent to the position as it stood in March.
What matters day to day is noticing the signals. One client starts giving instructions the other has not heard, or telephones separately when the calls used to come together. An address changes on one side alone, or correspondence arrives from one name only while the other goes quiet for weeks. Someone asks you, in terms or by implication, to keep something from the other. Any one of those is a reason to stop and ask whether you still act for two people who want the same outcome.
Say it at the outset and write it down when it happens
Your client care letter on a joint retainer should say plainly what happens if the two positions diverge, which is that the firm will usually stop acting for both and neither will keep you. It should also deal with confidentiality, which clients rarely understand. As between joint clients there is none, and what one tells you about the matter you are free, and often obliged, to tell the other.
Then record the moment. When you spot the divergence, note on the file what you saw, on what date, what you considered and what you decided, including a decision that the retainer can properly continue. The file has to show that the firm asked the question and answered it, because silence on the file gives you nothing to point to later.
Ceasing to act is an orderly step rather than an abrupt one. It goes in writing to both clients, it explains why without giving either information about the other, it deals with papers, money on account and the diary dates, and it tells each to take separate advice. You lose both clients rather than one, and the fee earner who hopes to keep the more valuable of the two is the reason firms get this wrong.
The Bracton AI Assistant reads across the whole caseload overnight rather than sitting inside one open file, which is what makes this drift visible. It sees instructions arriving from one joint client and not the other, contact details changing on one side alone, an attendance note recording that the two of them disagreed, a run of correspondence in which one name has stopped appearing. It raises the question for a fee earner to answer, and never decides whether a conflict exists, because that is a solicitor's judgement. Everything it drafts goes to a qualified fee earner for sign off, the audit trail records what was done and by whom, hosting is in the UK, and your client data never trains a model. The assistant is built into Bracton, the platform holding the matters, the diary, the ledgers and the compliance record, and a firm contracted elsewhere buys it on its own, plugged into LEAP, Clio, Proclaim or whatever it already runs.
You know your own joint retainers better than any list of signals does, and the exercise worth doing is to take the live ones and ask, file by file, whether the consent you took at the outset still describes the position today. The demonstration shows where the assistant raises that question and where a fee earner answers it, and the first written exercise runs on your own records: book a client account review.