When you search for an attorney to represent you, be thorough and make sure that the one you choose doesn't have a conflict of interest. Your attorney has a conflict of interest if she has competing professional or personal interests. Such competing interests can make it difficult to complete her duties with fairness.
Attorneys can't represent two or more parties with differing interests due to the loyalty they owe their clients. A few exceptions exist, but only if all clients are informed of the conflict of interest and written consent to proceed is provided. For example, one attorney shouldn't represent both the husband and the wife in a divorce case nor should an attorney represent both the mother and the father in a child custody case.
Model Rules Governing Attorney Conflict of Interest
The American Bar Association (ABA) has rules to govern lawyers' professional conduct. They the ABA Model Rules of Professional Conduct. Each state may adopt or reject these rules since it is up to each state to establish their own rules of professional conduct.
Under the Model Rules, attorneys may represent a client if the client is told about the conflict and gives written consent of 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.
Different Types of Conflict
There are several different types of conflict of interest that an attorney may be involved in such as:
- 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
- Litigation involving relatives such as a husband and wife in divorce case
- 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
Law Firm Conflicts
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.
An attorney who does not abide by the rule of not representing clients with conflicting interests and does not obtain written consent from them when undertaking representation of both parties may face disciplinary action. The laws vary by state but generally 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.
Selecting a Different Attorney
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.
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 conflict of interest in my state?