Are members of the legal profession (solicitors, attorneys and barristers) held to a Code of Ethics and if so, how are these applied and enforced by their respective professional associations and councils? Lex provides the legal insight and comments on situations of potential or alleged conflict-of-interest, as is the case with the submission of Me Antoine Domingue challenging the appearance of another senior barrister, Me Desire Basset, on behalf of his client Mr Pravind K. Jugnauth on grounds that have been mentioned in the press.
* We have heard a lot since quite some time about conflict-of-interest situations in different sectors. What is it all about, and are there different types of conflicts of interest?
According to Wikipedia: “A conflict of interest is a set of circumstances that creates a risk that professional judgement or actions regarding a primary interest will be unduly influenced by a secondary interest.” Primary interest refers to the principal goals of the profession or activity, such as the protection of clients, the health of patients, the integrity of research, and the duties of public officer. Secondary interest includes personal benefit and is not limited to only financial gain but also such motives as the desire for professional advancement, or the wish to do favours for family and friends. These secondary interests are not treated as wrong in and of themselves, but become objectionable when they are believed to have greater weight than the primary interests.
* How do you identify conflict of interest?
There are a number of situations whereby a person can find himself in a situation of a conflict of interest. It is difficult to identify a situation of conflict on interest in a vacuum or in isolation. One must place oneself in the appropriate context. Briefly, the conflict would arise when the person concerned has his judgment clouded on account of any relationship he may have with a person when it comes to making a decision. It may also arise where financial interests are at stake.
* Is conflict of interest a criminal offence?
Under the Prevention of Corruption Act, the offence is provided in section 13 which reads:
‘1. Where – a. a public body in which a public official is a member, director or employee proposes to deal with a company, partnership or other undertaking in which that public official or a relative or associate of his has a direct or indirect interest; and
that public official and/or his relative or associate hold more than 10 per cent of the total issued share capital or of the total equity participation in such company, partnership or other undertaking,
that public official shall forthwith disclose, in writing, to that public body the nature of such interest.
Where a public official or a relative or associate of his has a personal interest in a decision which a public body is to take, that public official shall not vote or take part in any proceedings of that public body relating to such decision.
Any public official who contravenes subsection (1) or (2) shall commit an offence and shall, on conviction, be liable to penal servitude for a term not exceeding 10 years.
Whenever a person places himself in a situation where he participates in a decision in which he or his associate or relative may have an interest, that puts him in a situation of conflict of interest.
* Are lawyers bound by a code of ethics?
Definitely. The Code of Ethics for Barristers was published as General Notice 1702 of 1997. There is also one for attorneys or solicitors prepared by the Council of The Mauritius Law Society under Section 17 (1) of The Mauritius Law Society Act.
* What are the guiding principles of the code of ethics for lawyers, and what are they designed for?
In the foreword to the Code of Ethics, Mr Varma, then Attorney General summed up the situation as follows:
‘The Code of Ethics contains the written standards of professional conduct to be observed by barristers. The general purpose of this Code is to provide standards of conduct applicable to barristers appropriate in the interests of justice. Observance of the provisions of the Code is not confined to inside the court room. It extends to all aspects of the barrister’s work and in some respects to behaviour beyond work as a barrister.
‘The qualities needed for a career at the Bar comprise attributes both of temperament and of talent. As highlighted in the report of the Entry to the Bar Working Committee chaired by Lord Neuberger of Abbotsbury in 2007, a combination of integrity, honesty, courage, commitment, common sense, and perseverance are required, as well as skills and talents including analytical skills, intellect, persuasiveness, organizational skills, good judgment and language fluency.’
In the English court case of Wingate & Anor- Austin v Solicitors Regulation Authority in 2018, one Judge said: “Integrity connotes moral soundness, rectitude and steady adherence to an ethical code… lack of integrity and dishonesty are not synonymous. A person may lack integrity even though not established as being dishonest…”
* We would like to think that lawyers, attorneys and notaries would all be guided by the same principles of Integrity, Objectivity, Professional competence and due care, Confidentiality, and Professional behaviour. What’s the rationale for these legal professionals to have each a separate code of ethics?
The Code of Ethics for Attorneys states: ‘An Attorney shall on taking the oath of office, endeavour to maintain the tradition, high integrity, honour and dignity of the profession and encourage other Attorneys to act similarly, in the practice of his profession and his private life, refrain from conduct which is detrimental to the profession or may tend to discredit it.’
This is not a far cry from the ethical standards expected of a barrister.
Traditionally we have followed the British model of having two branches of the profession: attorneys and barristers. In England it is the solicitor who interviews clients and takes instructions from them and advise them on necessary courses of legal action. In so doing he must act with integrity and honesty. The solicitor then briefs the barrister who appears in court.
Given the difference in the duties of an attorney and barrister, it is more practical to have two sets of ethical rules.
* What does it mean when a lawyer has a conflict of interest, and what does the law provide in the circumstances where a lawyer is perceived to be in a situation of conflict?
On conflict of interest the Code of Ethics for barristers states: a barrister shall not advise, represent or act on behalf of two or more clients in the same matter if there is a conflict or a significant risk of a conflict between the interests of those clients. He shall, in such a case, cease to act for both clients and he shall further cease to act whenever there is a risk of a breach of confidence or where his independence may be impaired.
But there are other considerations that also come into play like integrity, and whether counsel was in a situation where he obtained information that would pit him a more advantageous situation especially where there is no disclosure.
* Senior Counsel Antoine Domingue has taken objection to Me Desire Basset taking up the legal defense of Hon Pravind Jugnauth in the matter of the Private Prosecution lodged by Mr Suren Dayal against the MSM leader for allegedly swearing a false affidavit in connection with his election expenses. Me Domingue considers Me Basset to be in a situation of conflict of interest for having been a member of the ESC during those elections and even in January 2021 when Ashok Subron of Rezistans ek Alternativ had asked the ESC to carry out an investigation in this matter. What’s your take on that?
It all depends to what extent Me Basset was involved in the referral of the case to the police and how deep he delved in the ramifications of the allegations made by Rezistans ek Alternativ. Only Me Basset can enlighten us on that.
* From what we hear, it’s the Bar Council which should have looked into this matter, but our understanding is that the latter party has decided not to intervene and left it to Me Basset to take any action that he would deem fit. That seems reasonable, isn’t it, especially when the parties involved are senior members of the Bar?
The Code of Ethics for Barristers has this to say with regard to disputes amongst barristers:
Where a barrister considers that a colleague has acted in breach of a rule of professional conduct, he shall draw the matter to the attention of his colleague.
Where any personal dispute of a professional nature arises amongst barristers, they shall, if possible, first try to settle it in a friendly way.
A barrister shall not commence any form of proceedings against a colleague on matters referred to above without first informing the Bar Council so that the latter might have an opportunity to assist in reaching a settlement.
Did the Bar Council apply this rule? We hear that the Supreme Court has now summoned the Bar Council to come explain their stand. Let us wait and see.
* Me Basset has countered Me Domingue’s argument by referring to the judgement of Kjell Tore Sklevsland v Geveran Trading Co Ltd. What is this about, and how does that judgement help give guidance in this matter?
In that case, objection was taken to a counsel appearing in a case on the ground that he might have obtained information from the wife of a litigant against whom counsel was appearing. The court dismissed the objection.
As to the question of personal embarrassment, the court stated that if the embarrassment undermines the case of the client, it is for the client to take appropriate action.
As regards the objection to Me Desire Basset taking up the legal defense of Hon Pravind Jugnauth in this particular case, the test is whether the administration of justice would be undermined by the continued appearance of Me Basset in the case.
* Published in print edition on 23 November 2021
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