The Competition Authority will refuse to allow the same lawyer represent more than one person appearing before it, if it considers this amounts to a conflict of interest.
In a move that could lead to more "whistle-blowing" in the investigation of breaches of competition law, the authority has issued a "notice" to this effect to give guidance to businesses and legal practitioners.
The Competition Authority is empowered by the 2002 Competition Act to investigate breaches of competition law. It has the powers of the High Court to compel witnesses and to demand documents. Its investigations can lead to prosecutions in the Circuit Court on indictment and, where there is a conviction, maximum penalties of five years in prison and financial penalties amounting to 10 per cent of annual turnover.
The breaches of competition law which are prosecuted in the Circuit Court include price-fixing, bid-rigging and the allocation of markets.
Other breaches of competition law can be the subject of civil proceedings in the High Court, on the initiative of the authority. They include unilateral conduct by a firm in a dominant position which oppresses another. The action taken would entail seeking an order to "cease and desist".
In the investigation of criminal breaches of the law by the Competition Authority, there is a provision for offering immunity to anyone who offers information to the State. This provides the basis for a conflict of interest if one employee in a company under investigation wishes to offer information, and is represented by the same lawyer as other employees or the directors.
His interests in securing immunity from prosecution will not be the same as those of his colleagues or his employer, who will be under investigation. If they are represented by the same lawyer, or firm of lawyers, a conflict of interest will arise.
"The purpose of these guidelines is to ensure the integrity and effectiveness of the authority's investigative processes," said Mr Terry Calvani, the director of the cartels division in the Competition Authority.
"As we investigate potential price-fixing cartels or other possible breaches of competition law, we rely heavily on the testimony and statements of persons attending before the authority. We don't want the enforcement of competition law compromised by conflicts which potentially arise where the same lawyer represents more than one person in the same investigation."
He said it was also necessary to protect the integrity of the process within the authority. "We would not want to secure a conviction and have it set aside on the basis that the defendant claimed his legal representation was not truly independent of other interests," he said. "We have the same interests here as those appearing before us."
He said there had been instances of the same lawyer representing multiple defendants.
Mr Ken Murphy, of the Law Society, who was out of Dublin yesterday, said he could make no comment on the notice until he examined it in detail.