LAWYERS AND CONFLICT OF INTEREST
A lawyer must be independent
A lawyer (attorney at law) is expected to be independent. This independence involves an attitude: this is the lawyer’s disposition toward his client but also toward the court and in actual fact toward any other party involved. He ought to represent the interests of his client and not be led by his own interests. Neither is he allowed to represent the interests of others if they conflict with the interest of his client.
In the (Curaçao) Code of Conduct for Lawyers this starting point is described as follows: “The lawyer shall not undertake to represent the interests of two or more parties if the interests of these parties are conflicting or a development resulting in this is plausible. ” This is also logical because there is a relationship of trust between a lawyer and his client. The client should be able to trust that what he tells his lawyer remains secret and that it cannot be used against him at any time. This rule also applies to the firm to which the lawyer is attached or the group practice of which he forms part.
However, a lawyer is quite allowed to represent the interests of two parties even though their interests are conflicting. For instance, a divorce comes to mind whereby the spouses opt to be assisted by one and the same lawyer in the hope of thus reaching an amicable solution. But the moment that this lawyer establishes that there is a conflict of interest between his clients, such as for instance because both parties appear to be irreconcilable, and a proper representation of the interests of one of them might be prejudiced, he will have to withdraw. He will then have to withdraw completely and therefore cannot opt to continue to represent the interests of one of the parties.
The question is obviously if there are conflicting interests. A lawyer can advise the authorities (e.g. a Minister or government body) on a certain issue while at the same time he is conducting proceedings against the same authority on behalf of a civilian on a completely different issue. The interests in this example have nothing to do with each other. Under disciplinary rules there is nothing wrong in such a case but it might raise question marks with the client. This is because it does feel strange for a client if his lawyer is also being paid by his counterparty, even though these two cases are not linked.
For this reason transparency is important. A lawyer should avoid as much as possible doubts arising concerning his independence. In the example I mentioned the lawyer would be wise in the earliest stages to inform the client who wants to start an action against the authority, that he is the advisor to the same authority. The client can then assess himself whether he finds this objectionable. The lawyer does have to ask himself whether he can give this information considering his duty of secrecy. In many cases he will first have to ask the consent for this from his other client. After all, even the fact that a lawyer is acting for a certain party is covered by his duty of secrecy. With regard to the latter there are also exceptions, for instance when the lawyer has already talked to the press on behalf of that client and therefore it is known that he is acting for that client.
A lawyer who has represented the interests of a client could become the lawyer of the counterparty some time after the case has been concluded, even in a case against his former client. It should obviously not involve the same case and neither a case whereby the lawyer has in the past obtained confidential information from his – in the meantime – former client. In other words, the lawyer remains obliged toward the former client to observe secrecy. If that secrecy threatens to be violated by starting to act for the new client, or if the knowledge which the lawyer obtained from the former client would unjustifiably favor the new client, the lawyer will not be free to take on a case from that new client.
Moreover, in the question of whether according to disciplinary rules he is allowed to ‘switch’ from the one to the other relationship of trust, it is relevant how much time has elapsed in the meantime. This will depend on the concrete facts and circumstances of the case, including the nature of the client (for instance is it a private person or a company), the extent of being dependent on this particular lawyer (does the client regularly engage various lawyers or not) and the intensity of their contact, but certainly also the nature of the case (is it an extremely sensitive case or one of a more administrative nature).
Finally the following. In the past a private person or an entrepreneur, whether big or small, had one particular lawyer: the company or family lawyer. He was so to speak fused with his client and therefore had practically all the confidential information at his disposal. It was unthinkable that this company or family lawyer would ever act against his client; the loyalty was too strong for this. But for many years now it has been the habit particularly of companies, banks and the like to engage multiple lawyers and also multiple law firms. The element of trust still exists but over time the relationship has loosened somewhat. And obviously there are exceptions. For instance directors of bigger companies come to mind who consider an experienced lawyer as a good conversation partner with whom they share much more than merely legal issues. In those relationships loyalty (luckily) still plays a major role.
Karel Frielink
(attorney / partner)
1 May 2015
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