The profession of lawyers or advocate is universally regarded as a noble profession or officium nobile in latin. In Indonesia itself the profession of a sworn lawyer or advocate as a noble profession is also stated in the code of ethics for Indonesian advocates promulgated by the PERADI Indonesian advocate bar association.[1] As a nation that is based on the rule of law Indonesia recognizes the principle of equality before the law, meaning every person no matter their social status, position, or wealth are all equal under the rules of law. Therefore the role of advocates or lawyers in such a state is crucial to ensure that the rights of every individual is well protected and is not infringed upon. However, what happens when a lawyer handles a case or client in which the lawyer themselves conflicts with their own personal interest.
Conflict of interest based on the Black’s Law Dictionary is defined as a situation that can undermine a person due to self interest and public interest.[2] Whereas the PERADI Indonesian advocate bar association stipulates the prohibition of such an act in its code of ethics, which states:
“Article 4
j. Advocates who manage the joint interests of two or more parties must resign completely from the management of these interests, if in the future a conflict of interest arises between the parties concerned.”
Violation of the code of ethics under Law of the Republic of Indonesia number 18 of 2003 on Advocates (“Advocate Law”) could lead to severe sanctions to the violating lawyers. Based on Article 7 of the Advocate Law the punishment to violation of the code of ethics, including violations due to conflict of interests, would be as follows:
The above sanctions will be exclusively determined by the decision of the Honorary Council of the Advocate Association. Meaning that how severe the punishment that will be received by the violating advocate or lawyer will solely be determined case by case and based on the judgment of the members of the honorary council of the relevant bar association.
In this instance, why is a conflict of interest is in violation of an advocate or a lawyer’s role in its profession? For this issue we have to explore the core issue in the role and responsibility of an advocate.
Under Article 5 of the Advocate Law, the status of an advocate is that of a law enforcer, free and independent that is guaranteed by the rules of law. The term free is further defined in Article 14 and 15 of the Advocate Laws which states the following:
“Article 14
Advocate are free to issue opinions or statements in defending a case that has become his/her responsibility in court by keeping to the code of ethics of its profession and the prevailing laws. ”
“Article 15
Advocates are free to perform its professional duties to defend a case that has become their responsibility by keeping to the code of ethics of its profession and the prevailing laws.”
Both articles summons up the freedom of the advocate to defend its client in any case it has chosen to defend or taken upon. Ensuring that the rights of its client is respected and secured for the sake of the individual human rights of the client.
This is better emphasized in Article 3 letter (c) of chapter II of the PERADI Advocate code of ethics. In the article an advocate in performing its profession is free and independent and is not influenced by anyone and is obligated to fight for human rights in the state of Indonesia.
Then how exactly does this tie in with the prohibition of the conflict of interest. From the above it is clear that an advocate must act independently and shall not be influenced by anyone when performing its obligations to serve as a law enforcer. What if an advocate or lawyer has 2 (two) separate clients that are in conflict with each other or the lawyer or advocate is acting on behalf of both parties in the same case at the same time. This situation then impacts the advocate or lawyer from acting freely and independently since the advocate in such a situation will not be acting on the best interest of either parties. In any scenario the advocate will only come up with a decision that benefits one party but harms the other.
This is why Article 4 letter (j) of the PERADI code of ethics obligates an advocate to fully withdraw from the client, this is for the best interest of the client so that the client will have the best service that the said advocate can offer and the advocate is free to provide his/her service to the client. It is common practice in Indonesia that prior to accepting a case a lawyer or advocate will check whether the case they have accepted will be in conflict with any existing client, so as not to harm the current client in any way.
Indonesia is not the only country that prohibits the conflict of interest of its advocates and lawyers. Singapore under Rule 22 of its Legal Profession (Professional Conduct) Rules 2015 regulates that a legal practitioner or law practice must not act for a client if there is a conflict between the duty to serve the best interest of client and interest of the legal practitioner or law practice[3]. The People’s Republic of China with Article 39 of its Law of the People’s Republic of China on Lawyers also prohibits such action whereby a lawyer shall not act as agents for both parties involved in one and the same case.[4]
Therefore as a professional lawyer it is our duty to protect our client and ensure that any case that comes to us is properly checked prior to accepting in order for us to provide our best service possible.
Author:
Ryanshah Akbar Putra - Senior Associate of RH Consulting
