CONFLICT OF INTERESTS – CONFLICT BETWEEN THE LAWYER’S PERSONAL INTERESTS AND HIS PROFESSIONAL RIGHTS AND OBLIGATIONS
The issue of conflicts of interest in advocacy is rather unexplored. However, in most cases, the lawyer’s activity itself is carried out in a conflictual environment, which arises as a result of actions in the interests of the client and appropriate counteraction of the other party.
The legal literature expresses different points of view regarding this concept, but the legislator has clearly defined the definition in the Law of Ukraine “On Advocacy and Legal Activity”, which means a conflict between the personal interests of the lawyer and his professional rights and duties, which may affect his or her presence. efficiency or impartiality in the performance of his professional duties as a lawyer, as well as in the performance or omission of his actions during the practice of advocacy.
This Law has other provisions regarding conflict of interest, including:
Art. 4 states that the practice of advocacy is based on the rule of law, legality, independence, confidentiality and avoidance of conflicts of interest;
Article 21 – It is the duty of the lawyer to inform the client immediately of the occurrence of a conflict of interest;
Art. 28 – it is forbidden for a lawyer, a law firm or a law firm to conclude a legal aid contract in case of a conflict of interest;
Art. 28 – the ground for refusal to conclude a contract is a situation where the performance of the contract may be contrary to the interests of the lawyer, his family members or close relatives, the law firm or the law firm of which he is the founder (party), the professional duties of the lawyer, as well as other circumstances that may lead to a conflict of interest.
Legal regulation of conflicts of interest is also reflected in the Code of Ethics. Article 9 of these Rules establishes the principle of inadmissibility of conflicts of interest.
It should also be noted immediately that the definition of this concept is reflected in the Rules, but in a somewhat different, though similar interpretation: a conflict of interest should be understood as a conflict between the personal interests of the lawyer and his professional rights and responsibilities to the client, the presence of which may affect efficiency or impartiality in the performance of his professional duties as a lawyer, as well as in the performance or not of his actions during the practice of advocacy.
In fact, the difference between these definitions is in two words: “… before the client…”, but their presence compels this concept to be broader in comparison with the Law of Ukraine “On Advocacy and Advocacy”. Yes, it additionally includes the following competencies:
without a written agreement with clients who have a conflict of interest, a lawyer may not represent or protect at the same time two or more clients whose interests are mutually conflicting or likely to be conflicting, and in such circumstances provide them with legal assistance;
without a written agreement with clients who have a conflict of interest, a lawyer may not represent, defend, or provide legal assistance to a client if he has previously provided legal assistance, protected, or represented another client from whom he or she received sensitive information relating to interests new client;
a lawyer may not represent, defend, or provide legal assistance to the client if the client’s interests are contrary to the lawyer’s own interests.
Thus, we can see that the narrow interpretation of the law allows to understand only the conflict of interests between the interests of the lawyer and his professional rights and duties (Articles 20 and 21 of the Law on Advocacy and Legal Activity), and not the obligations to the client. .
Therefore, in our opinion, it is more appropriate to consider this concept within the framework defined by the Rules of Attorney Ethics, although they are less meaningful under the hierarchy of normative legal acts.
Author: Ivan Ischuk