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Conflict of interest
in the activities of Belarusian lawyers

30.07.2020
Applying to a foreign lawyer is always risky. This is an unfamiliar specialist working in another country, according to the laws not known to the client. What are the quality standards of assistance, are there rules of professional ethics, are they observed in practice? What should a foreign lawyer do in case of a conflict of interest? Is the lawyer obliged to refuse the client's assignment if this threatens the interests of another lawyer's client?

1. When the conflict of interest arises?

Belarusian law does not contain a normative definition of the "conflict of interest". The law contains a list of circumstances when an advocate is not entitled to provide legal assistance.

In particular, the advocate is not entitled to assist the client when the advocate provides (previously provided) legal assistance to the other client, whose interests contradict the interests of an individual or legal entity currently applying for legal assistance.
For licensed lawyers, the conflict of interest rule is worded differently. A licensed lawyer is not entitled to accept an assignment on handling a case in court if in the very case the lawyer provides (previously provided) legal services to persons, whose interests contradict the legitimate interests of the current client.

Read about Belarusian lawyers and advocates in our article "Who is who among the lawyers in Belarus?"

2. How does the conflict of interest rule work?

The conflict of interest rule is of general use; it is applied both in the provision of legal assistance on the basis of a contract and in the provision of legal assistance at the expense of bar associations or state budget. For instance, in the provision of legal assistance in criminal cases, when the state pays for the advocate's work.

The law does not set the timeframe for the conflict of interest rule. It is deemed that the obligation to comply with the conflict of interest rule survives after the advocate fulfilled his/her obligations for the provision of legal assistance, after termination of the contract, etc.

The advocate is to assess the existence of the conflict of interest both before concluding a contract for the provision of legal assistance and in the process of its execution. The advocate is required to consider not only the existing conflict of interest, but also the risk of its occurrence.

If a conflict of interest is discovered after the assignment is accepted, the advocate must discontinue representing the interests of all clients, refuse further execution of the accepted assignment.

In the event of such a refusal, the advocate must inform the client in advance so that the latter has the opportunity to seek assistance from another advocate.

3. How is the conflict of interest rule applied in practice?

The wording is complex and contains a number of conditions.

In 2018 the Belarusian National Bar Association summarized the practice of applying the conflict of interest rule and drawn up the recommendations for advocates, approved by the resolution of the council of the Belarusian National Bar Association dated 13 June 2018 No. 14/04. The most important provisions are below:

1. The main goal of preventing the conflict of interest is to protect the interests of the client. When assessing the existence of the conflict of interest, the advocate is to proceed from the literal interpretation of the law, where the cornerstone is the existence of conflicting interests.

2. Formal division of the clients into a claimant and defendant, debtor and creditor, debtor and recoveror does not confirm the existence of conflicting interests. For example, the advocate who represented a bank several years ago in a labor dispute with an employee of one of the bank's subdivisions is entitled to represent the interests of the opposite party in a dispute with the bank arising from a loan contract, surety, etc.

3. The advocate may accept an assignment subject to the following conditions:

- a new case and the case in which the advocate represented the interests of a former client have different subjects of proof, significant facts and (or) circumstances;

- there is no threat of disclosure of the information the advocate received from the former client, and the advocate does not have any information received from the former client, which can help the current client obtain an unfair advantage;

- provision of legal assistance does not affect the proper performance by the advocate of his/her obligations both to the current and former clients, including the obligation to maintain attorney-client privilege.

The advocate also has the right to take into account the following circumstances:

- the former and current clients have a common interest in essential conditions of the case (facts, circumstances);

- the clients are notified of the conflict of interest and gave their consent to further representation of the interests of one or both by the advocate.

If the clients are aware of the conflict of interest and agree to the representation of the interests of one or both by the advocate, it is advisable to obtain written consents.

So, the basic issue is the assessment of the circumstances in their essence. The advocate assesses the likelihood of possession of confidential information and its disclosure, the existence of information received from the former client that could harm the latter, a threat to attorney-client privilege, etc.

4. Are all lawyers of a law firm obliged to refuse the assignment if only one or several of them have the conflict of interest?

The restrictions associated with the existence of the conflict of interest do not relate to law firms or offices in general, but to a specific advocate.

In the Belarusian law and judicial practice there are no criteria and guidelines on how advocates have to act in this case, that is, there is no legal regulation similar to the "Chinese wall" institution in the USA. However, it is understood that advocates must not allow disclosure of information or act in any other way that can affect the protection of the client's interests.

In practice, advocates try to avoid such situations whenever possible, especially in criminal cases.

5. What liability is established for violation of the conflict of interest rule?

For acting contrary to the Law "On Advocacy and Advocates' Activity", Rules of Advocate's Professional Ethics and other acts of legislation on the advocacy, advocates are subject to disciplinary action.

The following disciplinary measures can be applied to advocates: warning, reprimand and expulsion from the territorial bar association. The expulsion entails the termination of a license and accordingly the impossibility of further advocates' activities.

These measures are applied indeed. There was a case of expulsion from the bar association for violation of the conflict of interest rule.

At the same time, the statistics of bringing to disciplinary liability shows that this violation is rare for the Belarusian advocacy.

    6. When the advocate is obliged to refuse the client's assignment?

    The advocate is not allowed to assist the client in the following cases:

    - the advocate participated as a judge, prosecutor, investigator, person conducting an inquiry, expert, specialist, translator, court session secretary, witness, attesting witness, arbitrator, patent attorney, mediator;

    - the advocate participated in the conciliation procedure or mediation, and also if an official who takes or took part in the investigation or consideration of the case is a spouse, father, mother, son, daughter, brother or sister of the advocate;

    - in a court considering a case as a court of first instance, a person who is in close kinship with the advocate works as a judge;

    - the advocate is in close kinship with another advocate in the same case assisting a person with contradicting interests;

    - the requirements of the person applied for legal assistance obviously contradict the law, or this person demands to accept evidence that is knowingly false or obtained in violation of the law, or to use other illegal means and methods;

    - the advocate knows that the investigator, interrogator or the court can summon him/her as a witness in the case;

    - circumstances requiring the advocate to divulge a secret entrusted to him/her by another person may arise, unless a written consent of the person interested in keeping the secret is obtained;

    - acceptance of the obligation to assist may complicate the provision of legal assistance to another client;

    - provision of legal assistance to the client can be so difficult that the advocate is not sure that he/she has sufficient knowledge and experience to properly perform it.

    7. Is it necessary to stipulate issues of the conflict of interest in the contract with a Belarusian lawyer?

    For advocates the rules on conflict of interest are established by law:

    - clause 2 of Article 18 of the Law of the Republic of Belarus dated 30 December 2011 No. 334-З "On Advocacy and Advocates' Activity" (Law "On Advocacy and Advocates' Activity");

    - clause 35 of the Rules of Advocate's Professional Ethics, approved by the resolution of the Ministry of Justice of the Republic of Belarus No. 39 dated 06 February 2012.

    The rules are mandatory in any case, regardless of whether they are specified in the contract between the advocate and the client.
    These requirements are not applicable to the lawyers without an advocate's license. Non-bar law firms tend to develop their own conflict of interest requirements.

    In addition, the Rules of Professional Ethics of Persons Providing Legal Services, approved by the resolution of the Ministry of Justice of the Republic of Belarus No. 37 dated 08 June 2007, are obligatory for licensed lawyers. The Rules contain only one regulation on conflict of interest (see para. 1 above).
    Andrei Vashkevich, Advocate, Managing Partner​ at Lex Torre Law Office
    Andrei Vashkevich,
    Advocate, Managing Partner
    a.vashkevich@lextorre.com
    Mob. +375 29 644 44 03
    Tel. +375 17 25 090 26

    Andrei Vashkevich has been practicing since 1990. Since 2013 – an advocate, managing partner at Lex Torre Law Office, member of the Minsk City Bar Association. One of the initiators and developers of generalizing practices and recommendations on the issues of conflict of interest and advertising of legal services.
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