shared with a legal representative to advance the interests of either the legal representative or another client. A stringent test to protect confidentiality is therefore appropriate. It is this principle that has underpinned the introduction of more rigorous principles to protect confidentiality across the Commonwealth, and Namibia should find an appropriately rigorous approach to protect confidential information. It is also important that clients can be assured of the undivided attention of their legal practitioner, and so the duty of loyalty requires legal practitioners not to act for more than one party in the same dispute, where the interests of those parties diverge. In determining the proper approach to the duties of loyalty and confidence, it should be borne in mind that Art 12 of the Constitution requires that litigants be afforded a fair before an independent court in the determination of their civil rights and obligations. In the light of Art 12 of the Constitution, and drawing on the guidance provided by the Commonwealth jurisprudence discussed above, the following principles should guide legal practitioners in observing the duty of loyalty and the duty of confidentiality that they owe their clients. These principles are not intended to be exhaustive and may well be supplemented by other principles as the law develops. First, the duty of loyalty imposes an obligation upon a legal practitioner to act diligently and devotedly in the interests of the client. The duty of loyalty subsists as long as the relationship of legal practitioner and client exists, but is terminated when that relationship is terminated. The duty implies that a legal practitioner may not ordinarily act against an existing client in respect of a matter
which is related to any matter upon which the legal practitioner has advised, or acted on behalf of, the existing client, without first obtaining the written consent of that client. If a matter involves a contentious dispute between an existing client and the new client, even written consent may not be sufficient to render the practice legitimate. This is not an issue in this case and need not be decided now. Whether it is a breach of loyalty for a legal practitioner to act against an existing client in relation to a matter unrelated to any matter upon which the legal practitioner has advised, or acted on behalf of the existing client, without first obtaining the client’s consent, will depend on the circumstances of each case. Those circumstances include the nature and extent of the relationship between the legal practitioner and the existing client, as well as the nature of the new instruction, and the question whether, viewed objectively, the existing client has a reasonable expectation of loyalty from the legal practitioner such that the legal practitioner should seek his or her consent before accepting the new instruction. The more casual or attenuated the relationship between the legal practitioner and the existing client, the less likely the existing client will have a reasonable expectation of loyalty. Of course, where a client has specifically requested and obtained a retainer from the legal practitioner, in terms of which the legal practitioner undertakes not to act against the client in respect of any matter at all or without first obtaining written consent, then that undertaking will, in addition to contractual obligations, give rise to a reasonable expectation of loyalty. Secondly, the duty of confidentiality imposes an obligation upon a legal practitioner not to divulge any information received from a client in confidence.
appeal are to be paid by the appellants, jointly and severally, on the basis of two instructed and one instructing counsel. ________________________ O’REGAN AJA ________________________ MAINGA JA ________________________ CHOMBA AJA APPEARANCES APPELLANT: T J Frank SC (with A W Corbett) Instructed by Conradie & Damaseb 2ND 5TH & 6TH RESPONDENTS: R Heathcote (with R L Maasdorp) Instructed by Koep & Partners