• What lawyers should do when there is conflict of interest

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    Persida Acosta

    Dear PAO,
    A long time ago, my father sought the assistance of a private lawyer to represent him regarding his complaint against our former neighbor. Recently, my father received a call from that lawyer telling him that our former neighbor wants to get him as counsel and wants my father’s opinion or stand on it. He said something about conflict of interest. Do situations like this really happen? Is it really necessary for my father to inform his lawyer of his stand on this? Thank you for your time and anticipating your response.
    Dado

    Dear Dado,
    It may happen that a lawyer, who has already been engaged by a certain party to represent them in their legal predicament/s, will be asked by an opposing or adverse party to likewise represent the latter. This may be for a number of reasons, such as the lawyer’s expertise in the specific legal field involved, his professionalism in dealing with his clients, his ability to deal with time pressures and tight deadlines, efficient negotiating skills, and the like.

    However, lawyers who are faced with this kind of situation should constantly exercise prudence in accepting an engagement and must always uphold the tenets of the lawyer’s oath as well as the Code of Professional Responsibility. As explicitly provided for under Rule 15.03, Canon 15 of the Code: “A lawyer shall not represent conflicting interests except by written consent of all concerned given after a full disclosure of the facts.”

    Appropriately, if your father’s former private lawyer believes that a conflict of interest may arise should he accept the offer of professional engagement of your former neighbor, then he is duty-bound to disclose these facts to your father and obtain the written consent of your father to such an engagement. If your father does not assent to such engagement, then the lawyer should decline the offer.

    Our Supreme Court has explained and enumerated ways to determine if a lawyer will be representing conflicting interests:

    “x x x One test is whether a lawyer is duty-bound to fight for an issue or claim in behalf of one client and, at the same time, to oppose that claim for the other client. Thus, if a lawyer’s argument for one client has to be opposed by that same lawyer in arguing for the other client, there is a violation of the rule.

    Another test of inconsistency of interests is whether the acceptance of a new relation would prevent the full discharge of the lawyer’s duty of undivided fidelity and loyalty to the client or invite suspicion of unfaithfulness or double-dealing in the performance of that duty. Still another test is whether the lawyer would be called upon in the new relation to use against a former client any confidential information acquired through their connection or previous employment. x x x” (Dr. Lee vs Atty. Simando, AC No. 9537, June 10, 2013, formerly CBD Case No. 09-2489, ponente: Associate Justice Diosdado M. Peralta.)

    We wish to emphasize that the “conflict of interest” spoken of need not necessarily be clear, obvious, considerable or substantial. As held by the High Court, “x x x It must be stressed that the proscription against representation of conflicting interests finds application where the conflicting interests arise with respect to the same general matter however slight the adverse interest may be. It applies even if the conflict pertains to the lawyer’s private activity or in the performance of a function in a non-professional capacity. In the process of determining whether there is a conflict of interest, an important criterion is probability, not certainty, of conflict. x x x” (Id.)

    Corollary, it will be best for your father to coordinate with his former private lawyer and personally communicate to him his stand on the matter.

    We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

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