This is a restrictive rule based on confidentiality that applies to the practice of law more than to any other profession. It is found in Rule 15.03 of the Code of Professional Responsibility for Lawyers providing that: “A lawyer shall not represent conflicting interests except by the written consent of all concerned given after a full disclosure of the facts”.
The rule springs from the duty of every attorney to represent his client with undivided fidelity and to maintain inviolate the client’s confidence. It is also an offshoot of the injunction forbidding the examination of an attorney as to any of the privileged communication of his/her client precisely because the relationship between attorney and client is one of utmost trust and confidence (Hilado vs. David 84 Phil. 569).
There is inconsistency of interests within the meaning of the prohibition when, on behalf of one client, it is the attorney’s duty to contend for that which his duty to another client requires him to oppose (Buted vs. Hernando, 203 SCRA 1), or when the possibility of such situation develops (U.S. vs. Laranza, 21 Phil 500).
The first situation contemplated by the prohibition refers to cases where the opposing parties are present clients of an attorney in the same action. An attorney who appears for opposing clients in the same or related action puts himself in an awkward position because he will have to contend on behalf of one client that which he will have to oppose on behalf of the other client (Buted vs. Hernando, supra). It will indeed be difficult for an attorney to give disinterested advice if he represents both parties to a controversy (In re De la Rosa 27 Phil. 258), or if as counsel for the plaintiff in a case, he will give advise to the defendant in the same case as to his rights, or prepare the answer to the plaintiff’s complaint (Medina vs. Bautista, 12 SCRA 1).
The second refers to a case where the opposing parties are present clients of an attorney in a totally unrelated case. It is improper for a lawyer to appear as counsel for one party against the adverse party who is his client in another totally unrelated action because he may not be able to pursue with vigor and zeal, the client’s claim against the other and to properly represent the latter in the unrelated action; or if he can do so, he cannot avoid being suspected by the defeated client of disloyalty or partiality in favor of the successful client (Agpalo, citing Memphis and Shelby Country Bar Ass’n vs. Sanderson, 52 Tenn. Appl 684).
The third case refers to that in which the adverse party against whom an attorney appears is his former client in a matter which is related, directly or indirectly, to the present controversy. The purpose here is to avoid treachery and double dealing so as to encourage litigants to entrust their secrets to their attorney which is of paramount importance in the administration of justice (Rosacia vs. Bulalacao, 248 SCRA 664).
In all these situations, the lawyer will be guilty of professional misconduct for violation of the conflict of interest rule. That the representation of conflicting interest is in good faith and with honest intention on the part of the lawyer, does not make the prohibition inoperative (Maturan vs. Gonzales, 287 SCRA 443).
Representation of conflicting interest may be allowed only if the parties consent to it after full disclosure of facts. Full disclosure of facts alone is not enough. There must be a written and informed consent on the part of the clients. However in the case of Natan vs. Capule 91 Phil 640, it has been held that a lawyer may represent a subsequent client against a former client when the subject matter of the present controversy is not related directly or indirectly to the subject matter of the previous litigation in which he appeared for the former client. He must however fully disclose the facts to the new client.
This rule comes to mind now after the much publicized, well attended re-launch of a now famous law office known as “the firm” last February 11, 2008 on the occasion of the return of some of its partners who were formerly connected with the government occupying powerful positions but have gone back to private law practice. I am referring more specifically to my esteemed colleague and friend Atty. Avelino “Nonong” Cruz, Jr. who served as Presidential Legal Counsel and DND Secretary, and the very capable Simeon “Sonny” Marcelo, the former Ombudsman and Solicitor General. Then there is Atty. Joey Tenefrancia who also had a stint in Malacanang as Presidential Legal Counsel and Atty. Pancho Villaraza who was reputedly the first lawyer of the President.
Undoubtedly, these lawyers have made a name for themselves while serving as public officials because of their dedication, competence and proven ability in the performance of their respective jobs. Indeed because of their fairly good stint in government, skeptics who ascribe a rather un-flattering connotation on why their law office is called “the firm” have become convinced that it is really “The Firm” because of their real professionalism and solid reputation as legal counselors and practitioners with principles. This was clearly proven when Nonong Cruz and Sonny Marcelo resigned from their positions apparently because of policy differences with Malacanang. In these days when officials cling to their jobs like leeches and would not resign despite controversies or even anomalies whirling around them, and when the sense of delicadeza has become so rare, the actions of these two lawyers are truly most welcome like a whiff of fresh air in our hot and humid political climate.
With their previous extensive connections, power and influence, it is almost certain that this conflict of interest restriction will come into play in their private practice. In fact one of the hottest topics at that gathering of Who’s Who in media, business, political, social and legal circles was the reported request of Jun Lozada for Sonny Marcelo to represent him in connection with the cases filed by or against him arising from the revelations he made on the ZTE-NBN deal.
Reportedly, Marcelo had already declined the request with a heavy heart precisely because of the very restrictive rule on conflict of interest although apparently Lozada’s cases may not be related directly or indirectly with the subject matter of the previous case he handled for the government. Knowing Nonong Cruz, he would also do the same under similar circumstances; and hopefully all his other returning partners. Indeed this is one test that all lawyers with true sense of professionalism should pass with flying colors.