Some important areas of law are very dull. One of these is conflicts of interest. There will never be an exciting TV drama about an attorney refusing a client over potential conflicts of interest. However, failing to recognize and act on these conflicts can have serious consequences for lawyers and clients.
The lawyer's duty is always to represent the best interests of the client. Anything that interferes with that duty may be a conflict of interest. There are many ways that seemingly unrelated matters can result in conflicts. If the lawyer's own interests are placed ahead of the client's interests for any reason, there is a clear conflict of interest.
What Are Conflicts of Interest?
The American Bar Association (ABA) has devised the Model Rules of Professional Conduct. All state bar associations have adapted these rules to establish grounds for an attorney's professional responsibility to past, present, and future clients. An attorney may not represent two or more clients in the same or a substantially related matter.
An attorney must zealously represent the client's interests in all matters related to the representation of the client. Some ways conflicts of interest develop include:
The attorney's interests conflict with the interests of the client. For instance, a client retains an attorney in a real estate purchase, but the attorney also made an offer on the same property.
The client's interests conflict with the interests of another client. This sometimes happens in personal injury cases, where the insurer's attorney must represent the company and the client against a third person's claim.
The client's interests conflict with a previous client's interests. The current client was the opposing party in a business transaction involving a former client's company.
Why Are Conflicts of Interest Prohibited?
Conflicts of interest arise in other settings. Doctors avoid treating family members. Politicians get censured for appointing relatives to high offices. However, if an attorney knowingly represents a client with a conflict, they face disqualification or disbarment. They may open themselves to a legal malpractice suit.
- Client-lawyer relationship: The ABA strives to protect the sanctity of an attorney's relationship with their client. Clients must be able to tell their attorney all the facts in their case without fear of the opposing party using them.
- Confidential information: Clients give information in confidence. Attorneys learn information from client confidences that could affect other cases, even those unrelated to the client.
- Ethics rules: Attorneys have specific duties to each client. The most important is a duty of loyalty. An attorney can represent multiple clients but not more than one client in the same case.
Attorneys must balance representing a client's interests with giving sound legal advice. The attorney also has a duty to exercise independent professional judgment. Sometimes, this can sound like the lawyer putting their own interests ahead of the client.
An attorney must make full disclosure of all possible outcomes of a case, including the likelihood of failure. For instance, an attorney may recommend a personal injury client settle rather than take a case to trial. An angry client may accuse the attorney of a conflict of interest, saying the attorney just wants their contingency fee. This is not a conflict as long as the attorney has acted in the client's best interests.
Exceptions to the Conflicts of Interest Rule
All attorneys and law firms perform conflict checks when accepting new clients. A potential client must fill out a brief questionnaire before meeting the attorney so the attorney can see if they have represented or opposed the client in any other case. If there is a conflict, the attorney may refer the client to another lawyer.
An attorney may be able to represent a client despite an apparent conflict of interest. State bar associations have different rules about a lawyer's representation of clients with possible conflict. An attorney may represent clients with conflicts if:
- The nature of the conflict is fully explained to the prospective client and the existing client.
- The lawyer believes they can provide competent and diligent representation to all clients.
- The cases are not "directly adverse" to one another, meaning the attorney is not representing the clients against one another. Common representation is sometimes possible in summary dissolutions where the parties only need an attorney to review the paperwork before submission. But even then, the parties should have independent counsel.
- Each affected client provides informed consent in writing, agreeing to such representation.
- The representation is not otherwise prohibited.
Some clients, such as those adjudicated incompetent, cannot sign an informed consent waiver. Some states, such as California, will not allow waivers of a client's consent if another client has an expectation of confidentiality. The attorney-client privilege always trumps any other conflict of interest exception.
Other Conflict of Interest Matters
Conflicts of interest can arise in situations outside the office or courtroom. Every state has its own laws about conflicts of interest and attorney discipline. If you have a conflict of interest issue with your attorney, you should contact your state bar association.
- Wills and trusts: Some states, such as California, prohibit attorneys from being beneficiaries of wills unless they are the blood relative of the testator.
- Sexual relationships: States vary widely about whether attorneys may have intimate relationships with their clients. As a general rule, it's better not to. The lawyer's role is that of legal counsel, not romantic partner.
- Financial interest: If an attorney has financial or other personal interests in a legal matter, they should not consult on a case. Even if there is no direct representation, it can create an appearance of impropriety.
Talk to an Attorney About Conflicts of Interest
A lawyer's ability to represent clients should not affect their ability to give legal advice. If you have any questions about a lawyer's services, contacting a skilled attorney near you is a good way to start. They can explain the lawyer's responsibilities to clients and what legal services are allowed.