Conflicts Of Interest: A Lawyer’s Dilemma By Johnson Babalola
On my recent trip to Nigeria, I found myself at a cozy local restaurant with a few of my friends, all lawyers like me. We were there for the food, of course, and the seafood soup on offer didn’t disappoint. The rich broth, filled with calamari, prawns, and a mix of fish, was a harmony of flavor that perfectly paired with the lively conversation we were about to embark on. As we dipped into the soup and nibbled on peppered snails, the topic veered toward a subject close to our professional hearts: conflict of interest in legal practice.
It all started innocently enough. FG, a sharp and experienced lawyer, between bites of crab, leaned back and began, “So, I know this lawyer, right? He represented a bank to recover funds from a client. Fast forward a year later, and he’s representing that same client against the bank in a totally different case!”
As FG chuckled, HJ piped up, waving a prawn mid-air, “But where’s the issue? That’s just how the system works sometimes.”
“Wait, wait,” VC interrupted, setting down his spoon with a flourish. “I’ve seen worse! A lawyer I knew represented a couple in their business transactions for years. Everything was fine—until they decided to get divorced. Guess who represented the husband in court? Same lawyer! Against his long-time client, the wife!”
The table erupted in laughter and disbelief, but beneath the banter, there was a clear undercurrent of unease. The issue wasn’t new, but the stories made it personal. As TT finished off a plate of calamari, he joined in, recounting, “Oh, and it gets juicier! We have lawyers appearing before their judge friends, some representing political party A against party B in one senate seat election petition, then flipping sides to represent party B against party A in another senate seat election petition within the same state and the same election period. I mean, it’s everywhere, from politics to commerce!”
We all laughed, but it was DY, the elder of our group and a seasoned litigator, who brought us back to the core of the issue. He sighed, shaking his head. “With the cultural and political landscape here, man, it’s complicated. Conflict of interest is something we just can’t seem to shake off in every aspect of our life in this country. And lawyers and others aren’t even doing conflict checks before taking on new cases or engaging in official transactions.”
I asked the group, with my bowl of seafood soup nearly finished, whether they run a conflict check before accepting new clients. Only one hand went up. The rest? A chorus of sheepish “nopes.”
The Principle of Conflict of Interest in Legal Practice
This lighthearted conversation belied a serious issue that many legal professionals, both in Nigeria and abroad, grapple with: conflict of interest. In legal practice, a conflict of interest arises when a lawyer’s duty to one client is compromised by the lawyer’s relationship with another client, or even by their personal interests. This principle is central to maintaining the integrity of the legal profession.
In countries like Canada, the rules are strict and clear. The Canadian Bar Association’s Code of Professional Conduct lays out that a lawyer must avoid any situation where their loyalty to a client could be compromised. In fact, the rule against conflict of interest is designed to prevent lawyers from representing two clients with opposing interests in a way that could affect the representation of either party.
This issue is deeply connected to the idea of impartiality and loyalty—fundamental to the legal profession. The Supreme Court of Canada in R. v. Neil (2002 SCC 70) set a high standard for conflict of interest, holding that a lawyer should not act in any matter where they have conflicting duties unless the clients provide informed consent. Furthermore, the court in Strother v. 3464920 Canada Inc. (2007 SCC 24) reaffirmed that even the potential for conflicting duties could undermine the trust placed in the legal profession.
On the other hand, in Nigeria, the Rules of Professional Conduct for Legal Practitioners (2007) outline similar ethical standards, but the practical application often tells a different story. Conflict of interest issues can be more widespread, and as my friends pointed out, are often neglected in favor of more expedient gains. The Nigerian Bar Association (NBA) is the governing body responsible for enforcing these rules, yet enforcement is often inconsistent. There is a cultural laxity around reporting and addressing conflicts, partly due to the political and social pressures lawyers face.
What Constitutes a Conflict of Interest?
At the heart of the conflict-of-interest principle is the idea that lawyers must provide undivided loyalty to their clients. In situations where a lawyer’s relationship with one client is likely to be adverse to another, or where personal interests come into play, the lawyer is ethically obliged to withdraw from the case. Some common scenarios include:
* Representing Adverse Parties: If a lawyer previously acted for a client in a matter, representing another client in a related or similar case against that former client can lead to a conflict of interest.
* Multiple Representations: Lawyers representing multiple parties in the same matter—like a couple in business dealings—could later face a conflict if that relationship turns adversarial, as in the case of a divorce or a commercial dispute.
* Relationships with Judges: A lawyer appearing before a judge who is a close friend, former colleague, or family member creates a potential for bias, and such situations must be handled with extreme care to avoid conflict or the appearance of bias.
In Ontario, Canada, a lawyer’s duty is clear under the Law Society of Ontario’s Rules of Professional Conduct. If a lawyer recognizes a potential conflict, they must either obtain informed consent from all parties or withdraw from the matter. In cases of significant conflict, withdrawing is the only ethical option. Similarly, the Nigerian Rules of Professional Conduct prohibit lawyers from acting in situations where there’s a conflict of interest, but the lack of structured conflict checks, as our dinner conversation highlighted, means this rule is often ignored in practice.
Safeguards Against Conflicts of Interest
The legal profession relies on certain safeguards to protect against conflicts of interest. In Canada, firms conduct conflict checks for every new client or matter. Lawyers must screen potential new cases against their previous cases to ensure there is no overlap in interests. If a conflict is found, the lawyer cannot take the case unless informed consent is obtained.
In Nigeria, however, many firms don’t consistently apply conflict checks, which leads to situations like those my friends described. Lawyers jump between parties, handle cases against former clients, and even take on roles that challenge the principles of impartiality. The NBA and the judiciary must play more active roles in enforcing the rules and ensuring that conflict checks become a standard practice.
The Link Between Conflict of Interest and Bias
Conflict of interest doesn’t just undermine the trust between lawyer and client; it raises the specter of bias. When lawyers act in situations of conflict, it erodes the public’s confidence in the judicial system. There’s a perception that the lawyer’s actions might be driven by something other than the best interest of their client—be it personal gain, favoritism, or divided loyalties.
In legal practice, there is also the risk of apprehension of bias, especially when conflicts go unchecked. This occurs when a reasonable observer might perceive that bias could exist, even if none does. In Canada, courts have emphasized this in cases like Baker v. Canada (Minister of Citizenship and Immigration) (1999), where the court noted that even the appearance of bias can compromise the fairness of a legal proceeding.
Conclusion: The Way Forward
Lawyers must be vigilant about avoiding conflicts of interest. They must conduct thorough conflict checks, ensure full transparency with their clients, and withdraw from cases when conflicts arise. Judges, too, must remain above reproach, disallowing any appearance of bias in the courtroom. In countries like Canada, these principles are deeply entrenched in legal practice. In Nigeria, while the rules exist, much work remains to be done to ensure they are fully enforced.
As we sat back, sipping on drinks after a hearty meal, the conversation wound down. But the lesson was clear: a lawyer’s integrity and loyalty to their clients are paramount. Conflict of interest, if unchecked, can unravel the very fabric of trust that holds the legal profession together. And in a country like Nigeria, where legal reforms are critical, upholding these principles is not just an ethical obligation—it’s a necessity for justice and nation-building.
Johnson Babalola, a Canada based lawyer, leadership consultant and corporate emcee, is a public affairs analyst. Follow him for discussions on real life issues that affect us all: https://substack.com/@johnsonbabalola https://medium.com/@jblawyer2021 https jbdlaw Website: www.johnsonbabalola://www.facebook.com/jbandthings
