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Conflicting Interests. The Conflict of Interest and Lawyering
Alexandru Lucinescu, Anelis Istratescu

Last modified: 2016-01-27

Abstract


This paper makes a contribution to the understanding of the confusing concept of conflict of interest by providing a sound theoretical framework for its analysis that could also be used to foster the developing of an explicit definition of this concept in the Romanian and the European Union regulations concerning lawyering. In the first section it is developed a comprehensive typology of conflicting interests that discriminates between intrapersonal conflicting interests and interpersonal conflicting interests, on one hand, and, on the other hand, between conflicting interests that operate in the context of a fiduciary relationship and conflicting interests that arise outside such a relationship. It is equally considered the influence that intrapersonal conflicting interests could have on each other with respect to the ability of the fiduciary to undertake an action and to conduct a decision-making procedure. Some relevant perspectives on conflict of interest are considered through the lens of the elaborated typology of conflicting interests and benchmarks for a more thorough definition of conflict of interest are advanced. The paper supports the conclusion that the conflict of interest could affect the judgment of a fiduciary in undetectable ways which compromises the reliability of the professionals affected by it. We also approached specific aspects of the applicability of the concept in lawyering, also noticing the lack of a precise definition, which underlines the necessity to elaborate one in a detailed and explicit manner.

Keywords


conflict of interest, conflicting interests, agent-principal problem, decision-making procedure, fiduciary, lawyering

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