Avoiding Conflicts of Interest When Hiring an Attorney

By Brian Farkas, Attorney
Are your lawyer's primary loyalties really to you?

Imagine that you went to see a doctor who prescribed you the wrong drug, causing damage to your lungs. You faced significant additional medical costs as a result. You go to a local attorney to sue. As you begin describing your case, the attorney stops you: It turns out, he represents your doctor. He handles the doctor’s taxes, does her estate planning, and defends the doctor from occasional lawsuits. Your attorney has what's known as a conflict of interest.

What’s So Bad About a Conflict of Interest?

Attorneys cannot represent everyone. In the scenario above, the attorney should not represent you in a case that involves you suing another of his clients. Why not?

For several reasons. First, doing so would violates the doctor’s confidence, since the lawyer might need to use confidential information obtained from the doctor against her while litigating your case.

Second, the lawyer might weaken his own ability to be a strong advocate based on pecuniary interests; that is, by deciding whether you or the doctor are the “better” client.

Third, representing clients with opposing interests would inevitably undermine your trust in your lawyer, since you can’t be certain that he is really fighting for you and only you.

For all of these reasons, lawyers are generally prohibited from taking on clients where their representation results in conflicts of interest. There are certain exceptions to this, and the rules governing conflicts are complex. But generally, lawyers owe a duty of loyalty to their clients, and conflicts like the one described above could violate that loyalty.

Model Rules Governing Attorney Conflict of Interest

Each state and the District of Columbia has its own rules regulating the conduct of lawyers. These rules include prohibitions and guidelines relating to conflicts of interest. The American Bar Association (ABA), which is a national association of lawyers, promulgates the ABA Model Rules of Professional Conduct. These rules are influential, and often mirrored by the states.

Model Rule 1.7 discusses conflicts of interest with current clients. The rule is complex, but states in part: “[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

Under the Model Rules, attorneys may represent a client if the client is told about the conflict and gives written consent to representation, as long as the representation isn’t against the law, doesn’t involve a claim by one client against another client, and it's reasonable to believe that the attorney can handle the case. Typically, however, attorneys will try to avoid potential conflicts of interest, since if something goes wrong, they could result in malpractice litigation.

Different Types of Attorney Conflicts

There are several different types of conflict of interest that an attorney may be involved in (or need to avoid), as follows:

  • Simultaneous representation, which is when one attorney represents two clients who are adversaries in a case.
  • When an attorney represents two clients in separate cases where the legal position of one will have negative consequences for the other.
  • When an attorney represents a client in a matter that may be adverse to that of a former client.
  • When an attorney acts as a witness in a case in which the attorney is also representing a client.
  • When an attorney enters into business transactions with a client.

When Conflicts Involve an Entire Law Firm

Law firms, or other attorneys within the same law firm, can also have conflicts of interest. For example, it is considered a conflict of interest for an attorney in the same firm to represent an opposing party in a case where a member of the firm is representing the other party. Model Rule 1.10 discusses the “imputation” of conflicts to other attorneys in a firm. Because of this prohibition, your lawyer may need to run a “conflict check” within his or her firm before agreeing to take your case.

Disciplinary Actions Based on Conflicts of Interest

An attorney who fails to follow the ethical guidelines regarding conflicts of interest, and does not obtain written consent when undertaking representation of parties with conflicting interests, may face disciplinary action. The laws vary by state, but in most states, the attorney may be required to attend a disciplinary hearing, where the attorney might be denied legal fees for the case and may even face suspension from the practice or law or disbarment. While some attorneys might be tempted to quickly collect a fee, smart lawyers will do careful conflict checks to avoid such issues.

Selecting a Different Attorney to Avoid a Conflict

If you are in a situation where your potential attorney has a conflict of interest, you may want to select another attorney even if the attorney has tried to persuade you that he or she can effectively represent you. It is possible that a conflict exists that your prospective attorney doesn't know about but it may be detected by software that many law firms are now using to monitor their conflict of interest exposure.

Do not be afraid to choose a different lawyer. Conflicts of interest can create problems down the line, even if they don’t seem like a major issue early in the litigation.

Questions for Your Attorney

  • Do you have a conflict of interest with my case?
  • Does your law firm use software to monitor your conflict of interest exposure?
  • What are the rules that cover attorney-client conflicts of interest in my state?
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