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CONFLICT OF INTERESTS – CONFLICT BETWEEN THE LAWYER’S PERSONAL INTERESTS AND HIS PROFESSIONAL RIGHTS AND OBLIGATIONS

The issue of conflict of interest in advocacy is rather unexplored. However, advocacy itself in most cases is carried out in a conflict environment, which arises as a result of actions in the interests of the client and the corresponding opposition of the other party.

The legal literature expresses different views on this concept, but the legislator has clearly defined the definition in the Law of Ukraine “On Advocacy and Advocacy”, which means the conflict between the personal interests of a lawyer and his professional rights and responsibilities, the presence of which may affect efficiency or impartiality during the performance of his / her professional duties by a lawyer, as well as for his / her actions or non-performance during the practice of advocacy.

This Law has other provisions concerning conflicts of interest, in particular:

  • Art. 4 establishes that advocacy is based on the principles of the rule of law, legality, independence, confidentiality and avoidance of conflicts of interest;
  • Article 21 – the duty of a lawyer is that he must immediately notify the client of a conflict of interest;
  • Art. 28 – a lawyer, law firm or law association is prohibited from concluding an agreement on the provision of legal assistance in case of conflict of interest;
  • Art. 28 – the grounds for refusal to enter into a contract is a situation where the performance of the contract may be contrary to the interests of a lawyer, family members or close relatives, law firm or bar association, the founder (participant) of which he is, the professional duties of a lawyer, as well as in the presence of other circumstances that may lead to a conflict of interest.

Also, the legal regulation of conflicts of interest is reflected in the Rules of Lawyer Ethics. Article 9 of these Rules enshrines the principle of inadmissibility of conflicts of interest.

It should also be noted that the definition of this concept is reflected in the Rules, but in a slightly different, albeit similar interpretation: a conflict of interest should be understood as a conflict between the personal interests of a lawyer and his professional rights and responsibilities to the client. efficiency or impartiality in the performance of a lawyer’s professional duties, as well as the commission or non-performance of actions by him during the practice of law.

In essence, the difference between these definitions is in two words: “… in front of the client…”, but their presence forces us to consider this concept in a broader sense, compared to the Law of Ukraine “On Advocacy and Advocacy”. Yes, it additionally includes the following powers:

  • a lawyer may not, without the written consent of clients with a conflict of interest, simultaneously represent or defend two or more clients whose interests are conflicting or likely to become conflicting, and in such circumstances provide them with legal assistance;
  • A lawyer may not represent, defend or provide legal assistance to a client who has a conflict of interest without his / her written consent, if he / she has previously provided legal assistance, protection or representation to another client from whom he / she received confidential information concerning interests new client;
  • the lawyer may not represent, defend the client or provide him with legal assistance if the client’s interests conflict with the lawyer’s own interests.

Thus, we can see that the narrow interpretation of the Law allows to understand the conflict of interests only as a conflict between the interests of a lawyer and his professional rights and responsibilities (Articles 20 and 21 of the Law “On Advocacy and Advocacy”), and not obligations to the client. .

Therefore, in our opinion, it is more appropriate to consider this concept within the framework defined by the Rules of Advocacy, although they are less significant in accordance with the hierarchy of regulations.

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