Professional Documents
Culture Documents
Conflict of Interest of Corporate Lawyers
Conflict of Interest of Corporate Lawyers
Conflict of Interest of Corporate Lawyers
of Corporate Lawyers
1
CPR provisions
Canon 21. A lawyer shall preserve the confidence and secrets of his
client even after the attorney-client relationship is terminated.
2
Corporate counsel and possibility of COI
Members of the Board of Directors
Employees of the corporation
General public
Counsels private interest
3
Duty of attorney to a
corporate client
[a]n attorney for a corporate client owes his duty [of loyalty] to the
corporate entity rather than a particular officer, director, or
shareholder. - ABC Trans Natl Transport, Inc. v. Aeronautics
Forwarders, Inc, 413 NE.2d 1299, 1310 1980
[t]he attorney for a corporation, even a closely held one, does not
have a specific fiduciary duty toward the individual
shareholders. - Kopka v. Kamensky and Rubenstein, 821 NE.2d
719, 727 (2004)
4
He should resolve all doubts against the
propriety of the representation. Cannon v. U.S.
Acoustics Corp. 398 F.Supp. 209 (1975)
5
Palm v. Atty. Iledan, Jr.
A.C. No. 8242 [2009]
Complainant is the President of Comtech, a corporation engaged in the business
of computer software development.
7
In his Answer, respondent alleged that in January 2002, Soledad
consulted him on process and procedure in acquiring property.
8
Respondent admitted that during the months of September and
October 2003, complainant met with him regarding the
procedure in amending the corporate by-laws to allow board
members outside the Philippines to participate in board
meetings.
9
In addition, although the information about the necessity to
amend the corporate by-laws may have been given to respondent,
it could not be considered a confidential information.
10
It is settled that the mere relation of attorney and client does not
raise a presumption of confidentiality. The client must intend the
communication to be confidential. Since the proposed
amendments must be approved by at least a majority of the
stockholders, and copies of the amended by-laws must be filed
with the SEC, the information could not have been intended to
be confidential. Thus, the disclosure made by respondent
during the stockholders meeting could not be considered a
violation of his clients secrets and confidence within the
contemplation of Canon 21 of the Code of Professional
Responsibility.
11
We find no conflict of interest when respondent represented Soledad
in a case filed by Comtech. The case where respondent represents
Soledad is an Estafa case filed by Comtech against its former officer.
There was nothing in the records that would show that
respondent used against Comtech any confidential information
acquired while he was still Comtechs retained counsel .
The intent of the law is to impose upon the lawyer the duty to protect
the clients interests only on matters that he previously handled
for the former client and not for matters that arose after the lawyer-
client relationship has terminated.
12
Santos Ventura Hocorma Foundation, Inc. v.
Atty. Funk, A.C. No. 9094 August 15, 2012
It alleged that Atty. Funk used to work as corporate secretary,
counsel, chief executive officer, and trustee of the Santos Ventura
Hocorma foundation from 1983 to 1985. He also served as its
counsel in several criminal and civil cases.
13
Here, it is undeniable that Atty. Funk was formerly the legal
counsel of Hocorma Foundation. Years after terminating his
relationship with the foundation, he filed a complaint against it
on behalf of another client, the Mabalacat Institute, without the
foundation's written consent.
14
An attorney may not, without being guilty of professional
misconduct, act as counsel for a person whose interest
conflicts with that of his present or former client. This rule is
so absolute that good faith and honest intention on the
erring lawyer's part does not make it inoperative.
16
Respondent entered his appearance as counsel for the PPSTA
Board members in the said cases.
17
What is a derivative suit?
Where corporate directors have committed a breach of trust either
by their frauds, ultra vires acts, or negligence, and the corporation
is unable or unwilling to institute suit to remedy the wrong, a
stockholder may sue on behalf of himself and other
stockholders and for the benefit of the corporation, to bring
about a redress of the wrong done directly to the corporation and
indirectly to the stockholders.
This is what is known as a derivative suit, and settled is the
doctrine that in a derivative suit, the corporation is the real party in
interest while the stockholder filing suit for the corporations behalf
is only nominal party. The corporation should be included as a
party in the suit.
18
A lawyer engaged as counsel for a corporation cannot represent
members of the same corporations board of directors in a
derivative suit brought against them. To do so would be
tantamount to representing conflicting interests, which is
prohibited by the Code of Professional Responsibility.
19
Corporation cannot consent to a
representation of a lawyer with COI
The cases and ethics opinions differ on whether there must be
separate representation from the outset or merely from the time
the corporation seeks to take an active role. Furthermore, this
restriction on dual representation should not be waivable by
consent in the usual way; the corporation should be
presumptively incapable of giving valid consent.
20
Quiambao v. Atty. Nestor Bamba
A. C. No. 6708 August 25, 2005
Complainant Felicitas S. Quiambao charges respondent Atty. Nestor A.
Bamba with violation of the Code of Professional Responsibility for
representing conflicting interests when the latter filed a case
against her while he was at that time representing her in another
case, and for committing other acts of disloyalty and double-dealing.
22
While the respondent may assert that the complainant expressly
consented to his continued representation in the ejectment case,
the respondent failed to show that he fully disclosed the facts
to both his clients and he failed to present any written
consent of the complainant and AIB as required under Rule 15.03,
Canon 15 of the Code of Professional Responsibility.
23
Extent or degree of prohibition on
representing COI
It must be noted that the proscription against representation of
conflicting interests finds application where the conflicting interests
arise with respect to the same general matter however slight the
adverse interest may be.
24
Business transactions between an attorney and his client are
disfavored and discouraged by the policy of the law.
25
De Guzman v. Atty. L. De Dios,
A.C. No. 4943 January 26, 2001
In 1995, complainant engaged the services of respondent as
counsel in order to form a corporation.
On January 10, 1996, with the assistance of Atty. De Dios,
complainant registered Suzuki Beach Hotel, Inc. (SBHI) with the
Securities and Exchange Commission.
On December 15, 1997, the corporation required complainant to
pay her unpaid subscribed shares of stock amounting to two
million two hundred and thirty five thousand pesos
(P2,235,000.00) or 22,350 shares, on or before December 30, 1997.
Complainant soon learned that her shares had been acquired by
Ramon del Rosario, one of the incorporators of SBHI. The sale
ousted complainant from the corporation completely. While
respondent rose to be president of the corporation,
complainant lost all her life's savings invested therein.
26
Complainant alleged that she relied on the advice of Atty. de
Dios and believed that as the majority stockholder, Atty. de
Dios would help her with the management of the corporation.
28
Thank you for your attention!!
29