What is a “Conflict of Interest”?

 

A conflict of interest occurs when an individual or entity is involved in multiple interests, one of which could possibly corrupt or improperly influence the motivation for an act in the other.  A conflict of interest can only exist if a person or entity is entrusted with some impartiality; a modicum of trust is necessary to create it. The presence of a conflict of interest is independent from the execution of impropriety. Therefore, a conflict of interest can be discovered and voluntarily defused before any corruption or impropriety can occur.  In many instances, the mere possibility or potential for a conflict of interest will be determinative of the issue.

 

Conflicts of interest are commonly encountered in legal representation matters.  Most commonly, a lawyer will not act for a party where the interests of that party conflict with the interests of another party for whom that lawyer has previously acted.    Other circumstances where a lawyer would decline to act in a particular matter would include where that lawyer already possesses relevant or confidential information in respect of the matter being litigated or inquired into.

 

Conflicts of Interest are addressed in the Irish Bar Council’s Code of Conduct adopted on 13 March 2006.  For instance, Section 2 of the Code of Conduct (entitled “Practising Barrister – General Principles”) deals with the matter at 2.14 as follows:

 

2.1         Having regard to the anticipated length and complexity of a case and having regard to their other professional commitments and the provisions of this Code of Conduct barristers are bound to accept instructions in any case in the field in which they profess to practice (having regard to their experience and seniority) subject to the payment of a proper professional fee.  A Barrister may be justified in refusing to accept instructions where a conflict of interest arises or is likely to arise or where they possess relevant or confidential information or where there are other special circumstances”.

 

An example of conflict of interest being identified and properly acted upon in the context of the Moriarty Tribunal reportedly arose in recent times where the present Attorney General, Paul Gallagher SC, declined to involve himself on behalf of the State in relation to the matter of a claim for privilege by the State over legal advices given to the Office of the Attorney General by Richard Nesbitt SC regarding the awarding of the mobile phone licence (see relevant section of this site).    Mr. Gallagher reportedly declined to become personally involved in that matter in his capacity as Attorney General owing to the fact that he had previously represented parties involved in one of the losing consortia that had submitted a bid for the second mobile phone licence in 1995. Mr. Gallagher stepped aside given his previous professional involvement in the general matter at issue and allowed the matter be dealt with by his colleagues on an arms-length basis.