High Court Pronounces on Lawyer’s Duty to Avoid Conflict of Interest.

“Having sued the 2nd Respondent in the substantive application, is Mr. Zwennes [a lawyer] saying that he must, as a solicitor for the 2nd Respondent, be also permitted to enter an appearance and defend the 2nd Respondent in the same suit?”, a commercial high court judge quizzed in a recent dispute over who was entitled to represent a company embroiled in an internal dispute. 

Here are the facts. Mr. Z is the lawyer and company secretary for the 2nd Respondent (a gaming company). And has acted in that capacity on so many occasions. An internal dispute arose. “A” a member of the company sued the 2ndRespondent company. Mr. Z, as lawyer for the 2nd Respondent, goes ahead to represent “A” (a member of the company) against his principal (the 2nd Respondent). 

The 2nd Respondent engaged another lawyer who brought an application to disqualify Mr. Z, as the substantive lawyer for the 2nd Respondent, from representing “A” on the grounds of conflict.  The court agreed that Mr. Z must be disqualified from representing “A” against the 2nd Respondent. 

This state of affairs made the court ask: “The question is Mr. Zwennes having sued the 2nd Respondent, the company, he is supposed to be its lawyer, who should represent the interest of the 2nd Respondent as a lawyer in court? Can Mr. Zwennes file any process for and on behalf of the 2nd Respondent in the substantive action?” The Court answered its question – “I do not think so.”

Aside from the practical challenges that the court identified above, if Mr. Z continued to act against the 2ndRespondent, then there was the likelihood that Mr. Z would use information obtained in confidence as a result of his relationship with the 2nd Respondent against the 2nd Respondent. According to the judge, the fact that Mr. Z was lawyer for the 2nd Respondent entitled him to assume that he [Mr. Z] had access to all confidential information in relation to the substantive matter. “It is therefore the duty of Mr. Zwennes to ensure that the company for which he is the solicitor is not put at risk in relation to confidential information that he obtained by reason of being the solicitor for the 2nd Respondent. I do not think confidential information needs to be divulged before a conflict of interest situation will arise. A solicitor for an entity cannot purport to represent another person against the entity he officially represents as solicitor”, the court noted.

Samuel Alesu-Dordzi

Samuel Alesu-Dordzi

Samuel Alesu-Dordzi is an Editor of the Ghana Law Hub.

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