ATP 105 Professional

10/20/2021

Ethics and Practice –

Conflict of Interest

Dr. Omondi R. Owino

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 Content Summary
Defining Conflict of Interest
Black’s Law Dictionary| SOPPEC 6 | Philomena Mbete Mwilu v DPP

Rationale
SOPPEC 6| Rule 20 LSK Digest of Professional Conduct &
Ettiquette|

Conflict of Interest Scenarios

Adverse interests| Limiting Responsibilities| Breach of
Confidentiality

Rules Governing Conflict of Interests

Disclosure| Situations adverse to client| Professional
misconduct

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 Defining Conflict of Interest

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 Black‘s Law Dictionary

“1. A real or seeming incompatibility between one's

private interests and one's public or fiduciary duties.
2. 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
if the dual representation adversely affects either
client or if the clients do not consent.”.- p.906 (8th
ed 2004)

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 SOPPEC 6 - Gazette Notice
5212 of 26th May, 2017

“A conflicting interest is an interest which gives rise

to substantial risk that the Advocate’s representation
of the client will be materially and adversely
affected by the Advocate’s own interests or by the
Advocate’s duties to another current client, former
client or a third person.”
pgh. 95

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 Philomena Mbete Mwilu v Director
of Public Prosecutions & 3 others;
Stanley Muluvi Kiima (Interested
Party)

“A conflict of interest means a situation where a

person finds himself or herself confronted by two
different interests so that serving one interest would
be against the other interest.”

Para. 69

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 Rationale for Rules Against
Conflict of Interest

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 Considerations

• Impairement of Advocate‘s ability to represent

client.
• Maintaining Loyalty to Client.
• Duty of Confidentiality.
• King Woolen Mills & Anor vs. Kaplan & Stratton
Advocates

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 Conflict of Interest Scenarios

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 SOPPEC 6

• Adverse interests.
• Factors limiting effective representation.
• Risk of unauthorized disclosure of information.
• Loss of independence by Advocate.

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 Rules Governing Conflict of Interests

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 SOPPEC 6

• Full and frank disclosure of conflict.

• Never act against a client you have acted for in a
similar or related matter.
• Advocate can only act in matters adverse to a
current client if such matter presents no conflict
of interest.
• Failure to make disclosure of conflict amounts to
professional misconduct.

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 Specific Laws

• Para 16 - Code of Conduct (Second Schedule to

Office of the Attorney General Act (No. 49 of
2012)) –.
• S. 11 – Office of the County Attorney Act No. 14 of
2020; Para 16 Second Schedule.
• S. 12 – Public Officers Ethics Act No. 4 of 2003.
• Para 6 (1) (b) - Code of Conduct for Members of
Parliament (Fourth Schedule to the Parliamentary
Powers and Privileges Act (No 29 of 2017))
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THANKS FOR
YOUR
ATTENTION

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