When a lawyer is conflicted (1)

“The rule prohibiting conflict of interest is a practical one and is rooted in the considerations of fairness and the basic premise of lawyer-client confidentiality.

Conflict of interest is something of a favorite topic among lawyers considering the ethical and practical considerations involved. A lawyer worth his salt and highly sought-after in his specialized legal field will eventually face a situation where parties on conflicting sides of an issue would both vie for him/her to be their counsel.

If this were an ordinary business transaction, a non-exclusivity agreement would have sufficed. But we all know that the legal profession is a noble one, governed by ethical bounds and considerations which must prevail above any consideration. How then does a lawyer avoid conflict of interest, and how do clients safeguard their confidentiality rights if their counsel is conflicted?

The rule prohibiting conflict of interest is a practical one and is rooted in the considerations of fairness and the basic premise of lawyer-client confidentiality. It is, more importantly, an ethical consideration, devised to prevent situations wherein a lawyer would be representing a client whose interest is directly adverse to any of his present or former clients.

In the same way, a lawyer may only be allowed to represent a client involving the same or a substantially related matter that is materially adverse to the former client only if the former client consents to it after consultation. It is grounded on the considerations of loyalty, such that whatever the lawyer learns in connection with the client’s case, such knowledge and information are expected to be guarded and kept as sacred. Needless to state, a lawyer must not only keep the client’s confidence — but he must also appear to do so and avoid the appearance of double-dealing. This way, litigants can be encouraged to put their trust in the sacred rule of lawyer-client privilege and confidentiality which is a cornerstone of our legal system.

Indeed, the nature of the client-lawyer relationship is one characterized by trust and the highest degree of confidence.

Compliance starts at the very beginning of the potential engagement. Rule 15.01 of the Code of Professional Responsibility provides that a lawyer, in conferring with a prospective client, shall ascertain as soon as practicable whether the matter would involve a conflict with another client or his own interest, and if so, shall forthwith inform the prospective client.

Once a lawyer has determined a conflict of interest is present, Rule 15.03 provides that he or she shall not represent such conflicting interests, except by written consent of all concerned given after full disclosure of the facts.

Applying these principles, the Supreme Court in the case of Tulio vs Atty. Buhangin (20 April 2016, A.C. No. 7110) suspended the respondent lawyer from the practice of law for a period of six months for representing conflicting interests. There, the complainant alleged that he sought the legal advice of the lawyer concerning a property owned by his mother which was then transferred in the names of third parties. Atty. Buhangin prepared and notarized a Deed of Waiver of Rights which was signed by all of the complainant’s siblings in his favor to settle the property concerned. He further engaged Atty. Buhangin is his counsel in filing a case for specific performance and damages concerning the same property.

Later on, Atty. Buhangin represented the complainant’s siblings and filed a complaint against the complainant in a civil case for rescission of the deed of waiver of rights which Atty. Buhangin had prepared and notarized. Prompted by this series of events, the complainant in filed a Motion to Disqualify Atty. Buhangin. Subsequently, Atty. Buhangin filed a Motion to Withdraw as counsel in the rescission case due to a conflict of interest. The complainant also pursued the instant complaint for disbarment against Atty. Buhangin, which led to a finding that the said lawyer had violated the rule against having a conflict of interest.

(To be continued)


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