Duty to avoid conflict of interest:
An advocate/lawyer who has been consulted by one party to a litigation may not appear on behalf of the other party, if the first party has conveyed to him any information of a confidential nature regarding the dispute between the parties.
The duty of an advocate who has been consulted by a party to a litigation who subsequently retains another counsel to conduct the litigation was considered in U Ko Ko Gyi v. U San Mya (1930) 17 AIR Rang 365. In that case a Bench of the Rangoon High Court upheld the order of the District Judge restraining a counsel from appearing for the defendants in a case in which he had been previously consulted by the plaintiffs. Upon a consideration of the evidence the learned Judges were satisfied that during the course of the consultation with counsel the plaintiffs had given him certain information which would be of use to him as counsel for the defendants. This, as already observed, was the decision by the learned District Judge. In the course of the judgment of the High Court, reference is made to the law upon the point in England as it has been expounded in Halsbury’s passage quoted as follows:
Counsel ought not to accept a brief against a party, even though the party refuse to retain him, in any case in which he would be embarrassed in the discharge of his duty by reason of confidence reposed in him by that party.
Confidential information creates conflict of interest:
The clear implication of this exposition of the law is that if no confidential information were conveyed to him, counsel would be free to accept a brief against a party who consulted him. In this connection reference may be made to the case in Cholmondeley v. Clinton (1815) 19 Ves 261. In the course of his judgment in that case Lord Chancellor Elden observed:
The practice of the Bar in my time was this: If a retainer was sent by a party against whom the counsel had been employed, the retainer being in a cause between the same parties, the counsel, before accepting it, sent to his former client, stating the circumstances, and giving him the option. That has, I believe, been relaxed; and the course now is as it has been represented at the Bar. I do not admit that he is bound to accept the new brief. My opinion is that he ought not, if he knows anything that may be prejudicial to the former client, to accept the new brief, though that client refused to retain him.
Decision on application to restrain a lawyer from appearing:
“I am positively of the opinion that the applicant has presented this application maliciously with some ulterior motive. I find absolutely nothing unprofessional in the conduct of Maharaj Singh Vakil, nor do I feel at all satisfied that any confidential information was given by Sri Ram to B. Maharaj Singh during the consultation which he had with him, or that the plaintiff in any way suffers any loss by B. Maharaj Singh conducting the defence in the suit.
It is a point not without significance that the application to have Mr. Maharaj Singh restrained from appearing for the defence was not presented until long after he had been instructed by the defendant. The applicant’s suit was filed in May 1938. The defendant’s written statement was filed on 27th July 1938. This written statement was signed by Mr. Maharaj Singh. On 1st September 1938 issues were framed when counsel for both sides including Mr. Maharaj Singh for the defendant were present. It was not until July 1939 however that an application was made to restrain him from appearing for the defendant. I find it difficult to believe that the plaintiffs were unaware that Mr. Maharaj Singh had been engaged for the defendant in their suit. I find it equally difficult to believe that the plaintiffs’ counsel were unaware that Maharaj Singh had been consulted by the applicants. The natural inference in the circumstances is that neither the applicants nor their counsel entertained any idea that Mr. Maharaj Singh was in possession of any confidential information which would have been of use to him in the conduct of the defence.”
Mystery of Law and Justice 