What is a conflict of interest?

What is a Conflict of Interest? | Lawyer in Izmir

What is a conflict of interest?

benefit, 

The name comes from the Arabic word menfaʿat.

Interest

A conflict of interest arises when an institution or individual becomes unreliable due to a clash between personal interests and professional duties or responsibilities. Such a conflict occurs when a person has an interest in something such as money, status, information, relationships, or reputation. Because of these interests, it becomes questionable whether the actions of the person experiencing the conflict of interest can be impartial. When such a situation arises, it is usually requested that the parties withdraw from the process. In fact, withdrawal from the process is often legally mandatory in cases where a conflict of interest exists.

In other words, a conflict of interest arises when the interests of the individuals the lawyer is representing do not align, and there is a possibility that the proceedings concerning one party may harm the other. This is regulated by the Attorneys' Law.

Legal Legislation Regarding Conflicts of Interest

Lawyers' Act
Article 38 – Lawyer;
a) If he considers the offer made to him to be corrupt or unfair, or if he subsequently comes to the conclusion that it is corrupt or unfair,
b) If they have acted as a lawyer or given an opinion to a party with conflicting interests in the same case,
c) (Değişik : 2/5/2001 – 4667/26 md.) Evvelce hâkim, hakem, Cumhuriyet savcısı, bilirkişi veya memur olarak o işte görev yapmış olursa,
d) If the situation arises where he/she must claim the invalidity of a document or contract he/she has drawn up,
e) (Cancellation)
f) If the work requested is not in accordance with the requirements of professional solidarity and order determined by the Turkish Bar Association,
He is obliged to reject the offer.

Turkish Bar Association Professional Rules

Article 36- An attorney who provides legal assistance to one party in a dispute cannot represent or provide legal assistance to the other party whose interests conflict. Attorneys working in a joint office are also bound by the rule of not representing individuals with conflicting interests.

Turkish Code of Ethics for Mediators

Interest or Conflict of Interest

Article 4- (1) There must be no conflict of interest between the mediator and the parties. The mediator must avoid giving the appearance of having a conflict of interest with the parties. (2) A conflict of interest between the mediator and the parties may arise after the parties apply for mediation, or it may have existed beforehand due to any existing or past personal or professional relationship between the mediator and the parties. (3) In order to conduct the mediation process, the mediator must conduct a reasonable investigation and examination to determine whether there is any event that would lead a bona fide third party to believe that a conflict of interest has arisen or may arise between the parties. The investigation that the mediator will conduct to uncover a conflict of interest that has arisen or may arise between the parties may vary depending on the circumstances of the specific case. (4) The mediator must inform the parties as soon as possible of any conflict of interest that has arisen or may arise that he could reasonably know and that could cast doubt on his impartiality. (5) If any existing or potential conflict of interest between the mediator and the parties is of a nature that would clearly harm the mediator's impartiality and the mediation process, the mediator must refuse mediation and withdraw from the mediation at any stage, regardless of the parties' requests and agreement to the contrary. (6) The mediator cannot subsequently act as a lawyer in a lawsuit filed in relation to the dispute in which he served in this capacity. However, he may act as an arbitrator in an arbitration proceeding if the parties request it with their explicit and written consent.

Decisions of the Disciplinary Board of the Turkish Bar Association

If a lawyer learns that they are representing parties with conflicting interests without their knowledge, they must immediately terminate one of the representations within a reasonable time in accordance with proper procedure. The correct course of action is not merely withdrawing from the representation, but completely refusing the job.
• Decision of the Disciplinary Board of the Turkish Bar Association dated 21.06.2003, case number 2003/87, decision number 2003/202:
“…The complainant learned at the hearing on September 9, 1997, in case number 1997/88 of the Magistrates' Court that the person in both cases was the same individual. However, after a considerable period, at the hearing on April 7, 1999, he announced his withdrawal from representation in case number 1997/437 of the Civil Court of First Instance. In this situation, the complainant lawyer should have immediately terminated one of the two representations in accordance with the procedure within a reasonable time, and should not undermine the public's trust and reputation in the legal profession. Therefore, the legal assessment made by the Disciplinary Board was found to be incorrect, and a disciplinary penalty was deemed necessary.’

Even if both parties are aware of, or even consent to, a conflict of interest in a case, a lawyer cannot accept the representation of the party with the conflicting interest.
• Decision of the Disciplinary Board of the Union of Turkish Bar Associations dated 21.01.2006, case number 2005/378, decision number 2006/11:
“…From the information and documents in the file, it is understood that the lawyer complained about undertook the representation of … in the enforcement file numbered 20023/712 of the … Enforcement Directorate with a power of attorney dated 12.06.2003, that he undertook the representation of … in the enforcement file numbered 2003/3561 of the … Enforcement Directorate as of 19.06.2003, that he served as the representative of the defendant … in the file numbered 2003/228 of the … Civil Court of First Instance until 07.10.2004, and that he was the representative of … in the file numbered 2003/165 of the … Family Court as of 26.05.2003, and that … consented in writing to the lawyer complained about being the representative of …, thus the enforcement proceedings and collusion initiated within the same time period and being of the same nature and being a continuation of each other are evident. It has been determined that he acted as a lawyer for opposing parties with conflicting interests in title deed cancellation lawsuits filed due to this reason.
The legislator felt the need to introduce such a regulation because accepting the representation of a party with conflicting interests undermines trust in the legal profession. In cases involving conflicts of interest, a lawyer cannot accept the representation of the party with conflicting interests, even if both parties are aware of the situation and, as in our case, have consented. Otherwise, each party would feel inadequately defended, which would fundamentally erode trust in the legal profession.

Source: Disciplinary Law for Lawyers, Attorney M. Haşim Mısır

Supreme Court Decisions

“"It is unlawful for defendants to be defended by the same lawyer when there is a conflict of interest between them and it is clear that the defense of one defendant would weaken the defense of the other." (CGK 14.06.2011, 1-44/122)

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