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Back to La regulación del conflicto de intereses en el ejercicio de la abogacía

Ángela Aparisi Miralles, Professor of Law Philosophy , University of Navarra, Spain

The regulation of conflict of interest in the practice of law

Mon, 21 May 2012 14:07:00 +0000 Published in Tarragó-Bech Abogados Magazine

From a deontological point of view, conflict of interest is one of the greatest challenges currently faced by law firms. In Spain, the current regulation is brief (articles 4 and 13 of the Spanish Code of Ethics for Lawyers) and insufficient, from agreement with the needs of the professional internship . The committee of Bars and Law Societies of the European Community (CCBE) is no stranger to this problem. In 1996, this body set up a specific committee to study topic. Its purpose is to review and update the current rules and regulations on subject which, at the European level, is constituted by article 3.2 of the CCBE Code of Ethics. The complexity of the issue is evidenced, among other things, by the fact that, despite the intense work of committee and the various reports and proposals for regulation issued, it has so far been impossible to reach a consensus agreement on this issue.

In order to carry out an adequate regulation of this subject, there is a budget that, in my opinion, is unavoidable: the previous reflection on the sense and the current mission statement of this profession in society. The official document of Lawyer is born in the context of social relations, in view of the need for everyone to have and enjoy peacefully what is theirs (whether goods or rights). For this, it is required the work of a professional committed with the defense of the just rights and interests of the people. Consequently, the lawyer owes to justice, understood not so much as a superior or ideal value, but as real or human justice, as justice of the particular case.

The realization of this particular justice demands, in turn, the respect to the essential principles of the profession. Among them, we can highlight professional secrecy, loyalty, independence, disinterestedness and trust in the lawyer. Likewise, from agreement with the provisions of the Code of Ethics of the Spanish Legal Profession, the virtues of "honesty, probity, rectitude, loyalty and truthfulness" play an irreplaceable role. As this text indicates, these virtues "must adorn any action of the Lawyer. They are the cause of the necessary relations of trust Lawyer-Client and the basis of the honor and dignity of the profession".

Based on this reality, a conflict of interests arises when certain conditions are present that may cause that the social function and the fundamental principles of the legal profession are distorted by secondary interests, such as the economic benefit, the professional prestige, the social recognition or that of the colleagues, etc. Certainly, every activity of the lawyer pursues a legitimate subjective interest or staff. But, at the same time, he must respect the interest goal and the essential principles of the profession. Therefore, the problem of the conflict of interests shall be in determining to what extent, in a specific status, there is a clear risk that certain personal or subjective interests may affect or even damage the essential goods and principles of the profession. Certainly, the boundaries between situations of risk and those that are not will never be clear-cut. Hence the importance of specifying the different possibilities in regulations.

In the current context, we are witnessing a process of increasing competitiveness and commercialization in the legal internship . There is a tendency towards pragmatism that tends to assimilate the work of legal professionals to the activity carried out in any other commercial business . Precisely, in this new professional context we can better ponder the importance and the necessary preservation of the principles and virtues that have traditionally governed the practice of law. An adequate regulation of the conflict of interest can be of great help to financial aid in view of this challenge.