Lewis Legal Ethics: A Guide to Professional Conduct for South African Attorneys - Juta & Co Ltd (1982) at paragraph 49, restates that:
"A conflicting interest is one which would be likely to affect adversely the judgment of the lawyer on behalf of or his loyalty to a client or prospective client or which the lawyer might be prompted to prefer to the interest of the client or prospective client."
It is trite, that a legal representative is duty bound to further the interests of his/her client with the required standard of reasonable care and skill. In furthering this duty, acting for multiple clients who have opposing material interests not only affects the ability of the representative to do so, but may also adversely affect the case of one and/or all the clients. In light of the potential serious consequences (contractual, delictual and criminal liability) which may flow from formal accident inquiry proceedings conducted in terms of section 65 of the Mine Health and Safety Act, No. 29 of 1996 ("the MHSA"), it is of utmost importance that prior to the hearing of such proceedings, a representative identifies and avoids conflicts of interest which may arise between his/her prospective clients.
The Duty to Identify and Avoid Conflicts of Interest Prior to the Accident Inquiry Proceedings
From a practical perspective, the parties who may have competing interests at accident inquiry proceedings include the following:
- the interests of the "the employer" (as defined in section 102 of the MHSA) in contrast to the interests of its managerial personnel at a particular mine e.g. where management neglected their duties and the employer reserves the right to discipline them for such conduct. In the majority of circumstances, however, the interests of the employer and its managerial personnel are aligned;
- the interests of an employer in contrast to the interests of an independent contractor company or third party company (that may assist the employer to perform the health and safety obligations at a mine) in circumstances where the employer is of the view that such entity did not comply with its contractual obligations and wishes to take action against such entity; and
- the interests of the employer in contrast to those of an employee in circumstances where the employee acted contrary to his/her training and the employer's procedures and practices. This may, of course, include individuals who are managerial, supervisory or other personnel in the employ of the mine and/or an independent contractor company at the mine.
Relevant to mandates to act on behalf of multiple persons or entities at accident inquiry proceedings, the following should be considered:
- There is no bar against acting for multiple parties and/or entities at such proceedings, even if there are opposing interests which are not material to the matter in question.
- In order to determine whether there is a conflict of interest between prospective clients, it is necessary, at the outset, to consult with the relevant persons to determine same with regards to the particular circumstances of the matter.
- It is advisable at such consultations to clearly indicate the purpose for such consultations i.e. to determine the extent to which you are able to act for multiple parties and entities at the proceedings, and obtain the consent for such consultation. Should it be reasonably foreseen that a material conflict of interest may arise at the proceedings (and/or and in any further contemplated proceedings) which would inhibit the representative from discharging his/her duties on behalf of one or more of the prospective clients, the representative is under an ethical duty not to accept the conflicting mandate. Importantly, he/she may still, at such stage, continue with the original (first) mandate e.g. which may be to act on behalf of the relevant entity and its managerial personnel etc. at the accident inquiry proceedings.
- Should a conflict of interest arise during litigious proceedings (which conflict of interest should and/or ought to have been reasonably foreseen by the representative), it has been recognised by our courts that the representative may have a duty to withdraw from all mandated parties in the matter. See S v Moseli and Another 1969 (1) SA 646 (O) and 650 (O), S v Dintwe and Another 1985 (4) SA 539 BG at 541 and S v Mathe 1996 (1) SACR 456 (N) at 458. Should same arise during accident inquiry proceedings, the material nature of the conflict and the potential consequences (for both the representative and respective mandated parties) must be evaluated. See also Law Society of the Cape of Good Hope v Tobias and Another 1991 (1) SA 430 (C) at 437 to 439. In this regard, the rules relating to attorney-client privilege and confidentiality should also be considered.
A representative who ignores the above considerations may be faced with a complaint and a corresponding charge of unprofessional conduct through the council of the appropriate control body. In addition, the respective clients (whom he/she has represented) may elect to institute a civil claim for damages against such representative on the basis of professional negligence. From the perspective of the respective clients, there is the further risk of adverse consequences and/or proceedings (criminal and civil) which may flow from such accident inquiry proceedings due to improper advice and/or representation.