Common Attorney Conflicts of Interest
Attorneys need to abide by the rules of professional conduct that are established for each jurisdiction in which the attorney is admitted to practice law. The rules of professional conduct include all of the ethical guidelines that attorneys must follow when providing services to a client. The rules of professional conduct require attorneys to refuse a representation or withdraw from an active representation if a conflict of interest arises. The duty of loyalty is paramount in the legal profession, and attorneys cannot provide services if the representation will be limited by a conflict, except with informed consent in writing signed by the client in certain circumstances. There are some common attorney conflicts of interest that often arise in the course of a legal representation.
Direct Adversity
Perhaps the clearest and most common attorney conflicts of interest is when an attorney is asked to represent one client who has an adverse interest to another client. For instance, an attorney cannot normally represent both the buyer and a seller of real property in most circumstances because the buyer and seller have adverse interest to a transaction. Moreover, an attorney cannot normally represent both a plaintiff and a defendant in litigation since an attorney usually cannot represent a client who is making a claim against another client.
Sometimes, it is more difficult to determine if there is direct adversity in a situation. For instance, an attorney may be asked to represent two defendants who are involved with litigation, which is normally permitted. However, if defendants have claims against each other, this may preclude the lawyer from accepting the representation. Moreover, even representing members of the same family or a business organization can be restricted because of the claims that individuals may have against each other. An experienced lawyer should be able to evaluate a situation and determine if a conflict of interest presently exists or may arise in the future so that the attorney can act accordingly.
Material limitation
Another one of the common attorney conflicts of interest is when the lawyer’s representation will be materially limited by some interest. This doctrine is broader and more fluid than the direct adversity limitation noted above. For instance, family ties and financial interests can all play into a material limitation. In some instances, a material limitation may be more nuanced than what might appear on the surface. For example, if a lawyer would need to make some argument for one client that could have a negative impact on another client in the future, this can constitute a material limitation. Lawyers need to avoid not only present conflicts of interest, but the possibility that conflicts might occur, which might make them more cautious when avoiding a material limitation conflict.
Confidential Information
A further important and common attorney conflict of interest is when the attorney obtains confidential information from a prior client that might impact another client. During the course of a representation, an attorney is likely to receive confidential information related to a client. Indeed, clients are encouraged to be forthright with their attorneys in order to receive the best representation possible and attorney-client communications are protected under the law. However, an attorney is not permitted to use confidential information they learn about a client against them in the future. If this might occur during the course of a representation, attorneys should avoid providing legal services.
Imputation of Conflicts
Another important thing to keep in mind concerning common attorney conflicts of interest is that a conflict will often be imputed on other lawyers who work with an attorney. Generally, if one lawyer is conflicted from pursuing a representation, all of the attorneys who work in the same firm are also precluded from representing a client. Sometimes, jurisdictions permit law firms to create an “ethical wall” in order to separate the lawyer who is conflicted from the representation from interacting with another lawyer who may work on a case. This requires the lawyers to not share information or materials with another. An experienced layer should be able to explain if an “ethical wall” may be available in a given situation and what steps will be taken to ensure that conflicts of interest are not imputed from one lawyer to another.
Conflict of Interest Waivers
Another time when common attorney conflicts of interest may not preclude a lawyer from pursuing a representation is when both clients sign a conflict-of-interest waiver. Such waivers generally must inform the clients of the potential conflict of interest, that each client is capable of retaining other counsel, and that they still choose to be represented by the conflicted lawyer despite the potential conflict of interest. Conflicts of interest can only be used in certain situations, and if a reasonable attorney would be impacted by the representation, they cannot use a conflict-of-interest waiver. An experienced lawyer should know when a conflict-of-interest waiver may be used in certain situations, and such a waiver may reduce costs and decrease practical issues with representation.
The Rothman Law Firm is experienced at handling and resolving all types of common attorney conflicts of interest issues. If you have a question about attorney ethics, or wish to have an experienced New York and New Jersey lawyer review an issue that may involve conflict of interest, please feel free to contact to The Rothman Law Firm to request a free consultation.