This section will explain what a conflict of interest is and what to do if you encounter one in your work. On the training activities page you will find a quiz to test your understanding of this concept.
Conflicts of interest
There are several types of conflicts of interest: your clients’ interests could be in conflict, or your personal interests could be in conflict with a client. In either of these situations, it is important that you as the legal advisor take steps to remove yourself from these cases or to minimize the potential effects of these conflicts. In many cases the conflict of interest can be resolved by referring the client to another legal advisor, preferably to another organization that is able to provide hight quality legal aid, or if none is available to an alternative advisor within your organization and withdraw yourself from the case entirely.
Do not offer services if:
- Another client has opposing interests,
- You have opposing financial or personal interests,
- You have a personal relationship with the client.
Conflicts of interest between clients
First, consider what you would do if one of your current client’s and a prospective client’s interests conflicted. Ideally, you would never get into this situation because if any of your current clients has an interest that is opposed to a prospective client, you may not take on that prospective client. You must not offer legal services to someone if another one of your clients has opposing interests.
An opposing interest is anything that would keep you from fully performing your duty of diligence to either client.
For example, imagine that you were representing a woman who fled her country because her male family members were threatening to murder her as an “honor killing,” and the police refused to protect her. If her brother then asked you to assist him to get refugee status for entirely unrelated reasons, you would have to refuse to represent him because your current client’s interests are opposed to those of her brother. Because you have not signed a legal agreement with the brother, you have no duties other than to keep the consultation with him confidential. It is good practice to refer the brother to another legal aid provider who can objectively present his claim for refugee status.
Now, consider what to do if you are representing two clients whose interests are in conflict. Because you have a legal agreement with both brothers, all duties in the Nairobi Code apply and you have a duty ensure everything that was agreed on in the legal agreement will be fulfilled. While in a conflict of interest with a prospective client, you can refuse services, you cannot stop providing the previously agreed on services to your existing clients.
Let’s imagine that you are representing two brothers who are seeking refugee status. Each brother tells you that the other one is wanted in their home country for killing their next-door neighbor. Under the Refugee Convention, committing a serious nonpolitical crime excludes a person from refugee status and therefore directly affects their claim for refugee status. By learning of this issue, your objective judgment of both brothers is tampered. In this situation, as long as the interests of the two clients were harmonious, there was nothing interfering with your objective judgement or ability to represent both brothers. It is only when of the contradicting statements that directly affect their eligibility for refugee status, the conflict of interest arises. In this case. you should refer at least one, if not both, of the clients to alternate advisers immediately.
Conflicts of interest between yourself and the client
If your personal interests conflict with your client’s interests then you may not take that person on as a client. You should never represent a prospective client when you have a direct financial or personal interest that is opposed to the client’s interest. Similarly, if you have a personal relationship with a client that could prevent you from exercising objective judgment, you should refer the client to an alternative legal adviser, if one is available.
What if there are no other legal advisers?
The Nairobi Code (Section 5.5) says that:
“Where…alternative legal advisors are unavailable, an advisor may assist clients where a conflict of interest exists only after clearly and explicitly notifying the clients of the conflict and its potential consequences, and after seeking ways to limit the scope of representation so as to minimize conflicts.”