THE views expressed here, in response to a request for comment, are personal.

By way of disclosure, I indicate that:

*I represent one debtor who is a party to the FINSAC Enquiry;

* In or about 2005, I did some limited consultancy work, through the then law firm of Cowan, Dunkley, Cowan for International Asset Services Limited, which had by then purchased a stake in the FINSAC debt from the Jamaican Redevelopment Foundation, Inc;

*In or about 1998, while an associate attorney-at-law with the firm of Taylor, Deacon and James, I did work for Fidelity Merchant Bank and my recollection is that it was taken over by FINSAC;

*I have represented less than a handful of other clients who have had dealings with FINSAC.

Best practice suggests that the FINSAC enquiry would have been prefaced by appropriate due diligence to determine potential or real conflicts of interest of the principal participants. While conflict may not always be detrimental, it would have been necessary to declare the same and make appropriate adjustments to avoid the possibility of bias as well as the non-disclosure or improper use of information. Media coverage, which has centred the conflicts of interest debate on the commissioners, needs to explore possible conflicts which could extend to lawyers as well as witnesses who have appeared or will appear. If, for example, there is counsel in the matter who has, at one stage or another, appeared, as an individual or through a firm, for parties with divergent interest, should this now be determined and disclosed? If not, should the current debate now be considered no more than vulgar sensationalism? And if there is in fact conflict, would mere disclosure suffice?

As far as the lawyers are concerned, we know that Anthony Levy, representing Thermoplastics, has already indicated to the commissioners that he would like Michael Hylton, QC called as a witness. He has commented that Hylton has at one stage or another represented several divergent interests in relation to FINSAC and believes this should have disqualified him from appearing. If this is factual, then there appears to be a significant public perception concern which must now be considered by the General Legal Council, (GLC) which regulates all lawyers, including Commissioner Carey, who would first have been a lawyer before he became a judge. Other lawyers in the matter may also be subject to complaints similar to those against Hylton and it appears to be a matter of public importance for the GLC to now determine the proper ambit of conflict of interest and desirable conduct of counsel. Their determination should thereafter become a part of the Code of Conduct for Lawyers.

In a nutshell, the conflict of interest concern represents an important safeguard that is intended to preserve good ethical conduct and the capacity of the public to repose confidence in the findings of a tribunal. It follows, therefore, that a lawyer who has been involved, for example, in a matter against a company who then represents the receiver after it has been placed in receivership thereby having acted both for and against the company must be guilty of an untenable conflict of interest. For this and other reasons, whenever briefs are offered to best practice law firms, they will indicate before accepting that they will have to conduct due diligence to determine if there is a conflict resulting from past or continuing representation. If there is conflict, the brief will be declined.

As legal practitioners, we should all be happy that this important debate as to conflicts of interest has assumed prime coverage in the media. Led by the GLC, we should now revisit the issue in a principled manner with the best interest of the public and their capacity to repose confidence in the legal system foremost in our minds. While some argue that conflicts, if declared, may be tolerated, this may not be the best approach since the implications of actions taken may affect persons beyond those specifically contemplated in the action taken. Given this fact, if the GLC is to now adopt a new and arguably a more principled approach, it should perhaps require lawyers in possible conflict situations confirm to the GLC on a predetermined basis there is no real likelihood of negative consequences for other persons, and this should be at risk of established sanction if the circumstances subsequently prove otherwise.

If Justice Carey is to be put on the altar in the interest of transparency, glasnost must now be the order of the day and all persons connected with the FINSAC Enquiry must now be required to declare their hand, in much the same way I have done above. Indeed, it may still be in order for the Commissioners to require, subject to the national security considerations, that all persons appearing before them now declare their cradle to grave involvement with FINSAC and related persons or entities.

Dr Christopher P Malcolm is a Lecturer in the UWI Faculty of Law at Mona who is admitted to practice in Jamaica, BVI, Saint Lucia, and Dominica.