Clients rely on their interests being represented without division. A conflict of interest undermines that trust and can make a mandate impossible. For lawyers, avoiding conflicts is therefore a central professional duty.
The statutory duty
Under Art. 12(c) of the Swiss Lawyers Act, lawyers avoid any conflict between the interests of their clients and persons with whom they have business or private relationships. The duty also applies within a firm: what one partner could not take on, the firm generally cannot take on either. For fiduciaries and advisers, comparable duties follow from mandate law, which requires faithful performance in the client’s interest.
Typical constellations
Acting for both sides in the same matter, acting against an existing or former client in a related matter, own economic interests in the outcome of a mandate, personal relationships with the opposing party, or information from an earlier mandate that could be used against the former client in a new one.
Systematic conflict checks
Before accepting any mandate, the firm checks whether the client, opposing parties and other participants already appear in earlier or ongoing mandates. The prerequisite is a cleanly maintained mandate and party database with consistent names and links. Modern practice software supports the search; the assessment remains a professional decision.
Documenting
The result and reasoning of the conflict check belong in the mandate file, especially when a mandate is accepted despite a connection, for example with the consent of all involved where permissible. A documented check protects in a dispute and shows that the duty was taken seriously.
Data and systems
A conflict check is only as good as the data it relies on. Duplicates, inconsistent spellings of company names and missing links to officers and beneficial owners lead to overlooked conflicts. Digital mandate management is covered in the entry on the engagement agreement.