LAWYERS AND CONFLICT OF INTEREST IN UGANDA

Conflict of interest is a situation where one owes separate duties to act in the best interest of two or
more parties in the same or related matters.
Black’s law dictionary 8th Edition defines conflict of interest as:
 A real or seeming incompatibility between one’s private interest and one’s public or fiduciary
duties.
 A real or seeming incompatibility between the interests of two of a lawyer’s clients, such that
the lawyer is disqualified from representing both clients of the dual representation.
For a conflict of interest to exist there must be a fiduciary relationship. This is because the concept of”
conflict of interest” based on the fiduciary relationship between an advocate and client. A fiduciary
relationship is essentially a relationship of trust. In the case of advocate-client relationship, the advocate
is the fiduciary who is given the right to take action on behalf of the client.
Conflict of interest in the laws of Uganda is premised on the Advocates (professional conduct)
Regulation SI 267-2. The different scenarios of conflict of interest as provided for under the regulations
are in Regulations 4, 9 and 10.

Regulation 4 of the advocates professional conduct regulations restricts an advocate from taking up a
matter against a former client, where the past advocate-client relationship, with that client would be to
the detriment of the former client, in that particular matter. It reads as follows:

“Regulation 4. Advocate not to prejudice former client.

An advocate shall not accept instructions from any person in respect of a contentious or non-contentious
matter if the matter involves a former clientand the advocate as a result of acting for the former client is
aware of anyfacts which may be prejudicial to the client in that matter.”

In Fred Nyeenya Mayambala and 2 0rs V Bisaso Nathan (Civil suit no.263 of 2005) [2011] UGHC 155 (24
October 2011), the Court discussed the implication of Regulation 4 of the Advocates (professional
conduct) Regulations SI 267-2. In this case plaintiff’s counsel raised a preliminary objection to the effect
that defendants counsel was not supposed to appear before court in this matter because of conflict of
interest. The issue was whether counsel who had earlier acted for the estate of Samuel Mayambala
(deceased) can subsequently be counsel in a matter regarding the same estate without having a conflict
of interest. The defendants counsel had earlier represented the estate under which the suit property
sought to be recovered by the plaintiff against the defendant fell. Court observed that the defendants
counsel had only represented the estate of Samuel Mayambala, who was not being sued in this case and
the plaintiff were merely suing as beneficiaries of the said estate, if it had been that the plaintiffs were
earlier represented or if it had been the estate of Samuel Mayambala suing the defendants, then there
would have been a conflict of interest. Court thereby held that counsel had never represented the

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plaintiffs and neither was the estate of Samuel Mayambala a party to the suit for there to be a conflict of
interest.
From this case it is clear that, for a conflict of interest to arise in respect of a former client there must
be a nexus between the two disputes, which prejudices the position of the former client. And most
importantly the aggrieved party must be a former client of counsel purporting to act on behalf of the
opposing party.
Regulation 9 of the Advocates (professional conduct)Regulations is also relevant when discussing the
issue of conflict of interest. It provides as follows:

“9. Personal involvement in a client’s case.

No advocate may appear before any court or tribunal in any matter in whichhe or she has reason to
believe that he or she will be required as a witness togive evidence, whether verbally or by affidavit; and
if, while appearing inany matter, it becomes apparent that he or she will be required as a witnessto give
evidence whether verbally or by affidavit, he or she shall not continueto appear; except that this
regulation shall not prevent an advocate fromgiving evidence whether verbally or by declaration or
affidavit on a formalor non-contentious matter or fact in any matter in which he or she acts orappears.”

In Lwandasa v Kyas Global Trading Company Limited misc. application no. 865 of 2014, arising from
HCCS no.681 0f 2014, in this case the transaction in dispute had been handled by M/S Nzige Jamero and
Co. Advocates, now defendants counsel. The sale agreement in dispute had been drafted by the
defendants counsel and the performance and execution was also overseen by the same firmand also,
the legal enforcement of the same. This matter was of a dispute regarding the said sale agreement.

Court noted that, that the issue material under Regulation 9 is whether, counsel will be required to
appear as both counsel and a witness.

Justice Christopher Madramathereby interpreted regulation 9 of the advocates professional conduct

regulations, as follows:Regulation 9 is merely a bar to an advocate from acting as both a witness and
counsel in a given matter. An advocate has to pick either to act as counsel, or to act as a witness in that
matter. And that the regulation is in respect of the individual advocate, as it is only an individual that can
be a witness and not the firm, since a firm is a partnership. And further that such a situation doesnot
amount to a conflict of interest.

Furthermore, the Advocates (professional conduct) Regulations generally prohibit an advocate from
taking advantage of the advocate-client relationship, under regulation 10, as quoted below.

“Regulation 10. Advocate’s fiduciary relationship with clients.

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An advocate shall not use his or her fiduciary relationship with his or herclients to his or her own personal
advantage and shall disclose to thoseclients any personal interest that he or she may have in
transactions beingconducted on behalf of those clients.”

A rather interest instance was seen in Uganda V Ojangole CRIMINAL CASE NO.1 of 2014 [2014]
UGCACD 3 (13 February 2014). In this case the accused was represented by the lawyers of her
employer, Uganda Development Bank Limited (UDBL), M/S Ligomarc and co. Advocates. The said firm
had prepared a loan due diligence report for the accused’s employer. The said report was disregarded in
granting the loan and when that fact was pointed out to the accused, the accused as CEO of UDBL
victimized and dismissed the whistle blower. And that was the basis of the accusations against the
accused. Thereby some of the evidence to be relied upon had been prepared by the said lawyers
M/SLigomarc and Co. advocates. Thus it was the contention of the prosecution that as a result there will
be, a conflict of interest where a partner or an employee of the said firm will give evidence and be cross
examined.

The issue was whether there is a conflict of interest if the lawyers for the accused’s employer
represented heron criminal charges emanatingfrom her acts at the workplace.

In relation to regulation 10, Justice Gidudu Lawrence, inter alia, observed that regulation 10 reinforces
regulation9. That is counsel is forbidden from taking advantage of the fiduciary relationship with his or
her client for any gain. That it was thereby not permissible for counsel having knowledge of the matter
as a result of having acted on behalf of UDBL to turn around and seek to act on behalf of Patricia
Ojangole in matter arising out of the same transaction. It thereby constituted a conflict of interest.

Further the position in Uganda v Ojangole (supra) should be distinguished from the position in
Lwandasa V Kyas (supra). This is because, as earlier noted, it was the contention of court that counsel in
the case of Uganda v Ojangole was trying to take advantage of the fiduciary relationship between an
advocate and a client. Particularly, counsel had acted for the accused’s employer, in preparing a
document, which was crucial in that case. Whereas, in the case of Lwandasa V Kyas (supra) court
rejected the suggestion that an entire firm should be stopped from representing a client because they
drafted thesale agreement and were involved in the transaction. Particularly, court noted that the ruling
in Uganda VOjangole (supra) has no bearing on a matter where counsel forthe defendants/respondents,
have drafted an agreement on behalf of the defendant/respondent.

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CONCLUSION
Conflict of interest is a rather interesting subject of the law. This is because, each case is determined on
its facts. And it is not always clear whether there is a conflict of interest because the law is sometimes
applied strictly and otherwise moral considerations can be a guide. However, it is clear that before
coming to any conclusion, one must closely evaluate the facts in that particular case to avoid any error.