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Conflict of Interest

I have been reading with some interest about the troubles of Israeli president Moshe Katsav.  President Katsav is being investigated for a number of crimes, the most serious of which is rape.  The Attorney General is close to handing down an indictment.  However, like many political office holders in democracies, the Israeli president has immunity from prosecution while in office.  The  AG has asked that Katsav either resign or temporarily step down.  Katsav has refused, saying that  this is a political vendetta against him and that he is not impeding justice while still in office.

The presidency in Israel is largely a cermonial position.  Katsav has little power beyond issuing pardons and calling for new elections when the government asks for it.  Further, he is supposed to be the voice of reason for the state.

Katsav doesn’t recognize the conflict of interest that he’s in.  The people who apparently have direct knowledge of some of the wrong doing work for him.  But what Katsav is missing is that confilct of interest is not in the eye of the conflicted, but in the eye of the beholder.  It shouldn’t be up to him whether to declare himself in conflict or not.  It is an outside observer who should determine that.

We had a similar case here in this country.  Antonin Scalia is apparently good friends with Vice President Cheney, even to the point of going hunting together (thankfully, Cheney didn’t shoot him).  Scalia did not recuse himself on a case that involved the VP, when he should have if either party asked.

As a mediator and arbitrator, I always disclose if there is even a remotely conflict of interest.  I leave it up to my clients to determine it.  For instance, I was appointed to an arbitration where one of the parties was represented by an attorney who worked for the same firm as a close friend’s wife.  I certainly could have “argued” that my ruling on the case would not have any impact on her employment or on her compensation.  But that’s not my call.  There’s an old maxim that says, “If there’s any question, there’s no question.”

Disclose when in doubt and let the clients make the decision.