The issue of the impact of the relationship with a person for whom an attorney-at-law performed activities in the period before becoming an attorney-at-law, having conflicting interests with a current client, on the assessment of the possibility of a conflict of interest within the meaning of the Code of Ethics for Attorney-at-law (Polish abbreviation: KERP), has not yet received a separate study in science.
The sanctioned norms arising from the KERP (e.g., the duty of loyalty, confidentiality, etc.), from the subjective side, apply only to legal counsel in connection with their previous or current counsel’s duties (an exception to this rule arises from Article 27(1) and (2) of the KERP). It is impossible to talk about the fairness of the procedure if it is to implement an unjust (because unclear) substantive law, as this can result in the unpredictability of the court’s actions. A long-lasting and uniform practice of the jurisprudential bodies would make it possible to decode the legal norm described in these rulings despite the vagueness of the normative background. If such practice is absent or not uniform without written ethical rules, it is difficult to speak of meeting the predictability condition.
Disciplinary proceedings are repressive in nature. It finds appropriate application of the principle of determinacy of the act (nullum crimen sine lege certa).
The deontological norm cannot be arbitrarily vague, as that would consolidate with procedural justice regulations through the risk of arbitrary adjudication.
The purpose of the attorney-at-law avoiding conflicts of interest is to ensure independence and to maintain professional secrecy and loyalty to the client. According to Article 5(4) of the KERP, a client is anyone to whom an attorney-at-law provides legal assistance. A client is not a person for whom a person who is not an attorney-at-law has performed certain activities in the past. The only KERP provision relating to conflicts of interest in connection with activities performed before becoming an attorney-at-law is Article 27.
The conflict of interest, as regulated by Article 26 (disclosure of professional secrecy), Article 28 (prohibition from acting as an attorney or counsel for a client whose interests conflict with those of another client) and Article 29 (prohibition from advising a client whose interests conflict with those of another client) applies both to situations involving the existence of two clients in parallel and to cases where the conflict of interest may arise between a current client and a previous client. Based on the aforementioned regulations, it is not possible to diagnose a conflict of interest in connection with a relationship with a person to whom a non-lawyer has provided legal assistance.
It is impossible to construct, per analogiam, a parallel system of norms covering, with its scope (in contrast to Articles 26, 28, 29 of the KERP), also the relationship of the future attorney-at-law with persons who never had the status of a client.
