CONFLICTS OF INTEREST
Principles of Confidentiality
Once a planning consultant is briefed by a client to attend to a matter in a specific area, it often occurs that the client considers that the consultant is somehow precluded from taking instructions from other clients for similar purposes in the same general area. Peter Dacomb provides a summary of an interesting court judgment on this topic.
The judgement referred to below sheds some light on a potential conflict of interest, albeit with regard to an attorney in dispute with a client. Important parallels may be drawn as far as the planning profession is concerned and the judgment may serve as an example to planners who may be confronted by similar circumstances.
Practising professional planners generally enjoy convenient access to vast bodies of information, given the technological era we find ourselves in. Inevitably, conflict and often confusion arise between confidentiality on the one hand, and transparency, access and disclosure on the other. Personal rights are often weighed against public interest – the latter being the topic of much debate in disputes where the members of the public choose to criticize the approach followed by a planner. The public is not always necessarily interested in the "public interest".
The High Court recently ruled on whether there was a conflict of interest which entitled a former client to enforce, by way of an interdict, a duty of confidentiality against that client’s former consultant.
The law dealing with fiduciary relationships gives rise to an obligation on the consultant to respect the confidentiality of information received in confidence. Also, such law obligates the consultant to refrain from using or disclosing such information otherwise than as permitted by law or by his/her appointment contract.
To procure an interdict preventing a consultant representing a new client at the potential detriment of the interests of the former client, the former client would need to prove that:
• confidential information was imparted or received in confidence as a result of the client/consultant relationship and the information remains confidential;
• it is relevant to the matter at hand (say a dispute regarding use of land); and
• the interests of the present client are adverse to those of the former client.
There is no ongoing regulated relationship or duty of loyalty owed by a consultant to a former client. The duty to a former client is limited to respecting confidential information acquired during the course of the relationship with the client. Where the former client fails to establish any of the aforesaid requirements, an application for an interdict, preventing a consultant representing a different client, must fail.
Wishart & Others v. Blieden N.O. & Others 2013 (6) SA 59 (KZP).
With appreciation to MacRobert Incorporated.
SAACPP/18 March 2014