• Lawyers and Conflict Of Interest
  • April 21, 2011 | Author: Natalia Tobón
  • Law Firm: Cavelier Abogados - Bogotá Office
  • Conflicts of interest in Colombia are classified as lack of loyalty towards the client, as follows [2]:

     “Assist, sponsor or represent, simultaneously or successively, those having conflicting interests. However, with the consent of all parties, they can take steps or actions for the mutual benefit of the parties. 

    The members of the same law firm or company can incur in this, if        representing conflicting interests.”

    This is also typified in the Colombian Criminal Code, as follows:[3]:

    “Disloyalty to professional duties.  The proxy who in a judicial or administrative matter, by means of any fraudulent means, harms the matters entrusted, or who in the same or different matters defends contrary or incompatible interests arising from the same factual assumptions, shall be punished with imprisonment. If the conduct is related to a criminal matter, the penalty to be imposed will be increased by one third.”

    Case law has explained this concept as follows:

    a.The conflict is between interests, and not individuals[4]

    Colombian case law has set forth that there is conflict of interests when they refer to the same purpose, or better when they pursue the same objective in a specific case. For example, there is conflict of interests when in the same lawsuit the lawyer represents both the plaintiff and any of the defendants[5].

    Consequently, it is not possible to forbid a lawyer to assist in the future an individual who was his adversary party in a different case, because this would be equivalent to restrict disproportionately the practice of the legal profession because then the lawyer could not intervene in those matters in which “one of the parties is an individual that has been represented by him in a previous case”[6].

    b. The conflict of interests can be either simultaneous or successive

    The conflict of interests can be either simultaneous (between the plaintiff and the defendant; the party accused of a crime and the plaintiff in a civil action; the executant who asks for the attachment of property and the third party that opposes to the attachment) or successive (first to the plaintiff in an ordinary civil process and then to the party executed for making effective the sentence issued within that process; to the assumed natural son in a filiation process and then to the legitimate children opposing that the former have right to part of the decedent’s estate).

    c. The authorization for representing conflicting interests should be specific.

    The authorization to represent individuals with conflicting interests should be specific and not tacit[7].

    d. The case of law firms

    While being in force Decree 196 of 1971, which did not mention law firms, there were some who held that different areas of practice of a firm could assist different clients having conflictive interests in one same case, because the areas of practice of the firms usually operate independently and are in addition made up by different lawyers. However, the Disciplinary Code of lawyers of 2007 ruled out that possibility, when setting forth that “the members of one same law firm or lawyers’ corporation representing conflicting interests” incur in lack of loyalty with the client. 

    e. Other legislations

    The concept of conflict of interests is more widely regulated in other countries. The purpose is not only preventing lawyers from acting simultaneously or successively defending conflicting interests, but to have the lawyers at all times preserve loyalty and independence in the practice of their profession. For example, the Model Rules of Professional Conduct of the American Bar Association -ABA-, stipulate that there are two types of limitations for representing a client[8]:

    • Subject limitations. Subject limitations occur when the representation of a client can be adverse to the interests of a present or previous client. It does not necessarily has to refer to clients having conflicting interests. For example. For example, when representing several individuals wishing to create a corporation or a joint venture, even though all these individuals wish the same ¿to incorporate a corporation or joint venture-, it is possible that the representation of one be harmful or beneficial to another.  
    • Personal limitations: When two or more lawyers representing several clients in a case or related cases are linked by marriage or family relationships, there is high risk of disclosure of confidential facts, thus making said links to interfere with the independence of judgment of the professional. Something similar happens with a lawyer who has sexual intercourse with his/her client. The ABA considers that the lawyer can lose independence in his/her professional conduct.   

    [1] Colombia, Supreme Court. Jud., sent. Oct. 22/98, Filing number. 13954B, Reporting Judge. Leovigildo Bernal Andrade.

    [2] Colombia, Lawyer’s Disciplinary Code 2007, Article 34 letter e).

    [3] Colombia, Penal Code, Art. 445

    [4] Colombia, Supreme Court Jud., sent.  Sep. 25/97, Writ.14471 Reporting Judge Rómulo Gonzalez Trujillo.

    [5] Colombia, Supreme Court Jud., sent.  Sep. 25/97, writ.14471. Reporting Judge. Rómulo Gonzalez Trujillo.

    [6] Colombia, C.Supreme. Jud., sent.  Sep. 25/97, writ.14471 Reporting Judge. Rómulo Gonzalez Trujillo.

    [7] Colombia, Supreme Court. Jud., sent. Aug. 25/94. M.P. Rómulo González Trujillo.

    [8] United States of America, American Bar Association. ABA. Model Rules of Professional Conduct. Client-Lawyer Relationship. Rule 1.8. Conflict of Interest. www.abanet.org/cpr/mrpc/rule&under;1&under;6comm.html. Retrieved on September 5, 2007.