Conflicts of interest occur in many everyday situations, but they typically won’t require a formal punishment. A parent serving as the head coach for a team their child is on would be a conflict of interest, but it would not break any laws.
However, when it comes to the legal field, all lawyers should avoid conflicts of interest. If a lawyer is found to represent a client despite a conflict of interest, they can face legal repercussions by the state bar for legal malpractice.
What is a Conflict of Interest?
Conflicts of interest are referenced in the American Bar Association’s Model of Rules and Professional Conduct. According to Dictionary.Law, the definition of a conflict of interest is “a situation in which a person has a duty to more than one person or organization, but cannot do justice to the actual or potentially adverse interests of both parties.”
Several different situations would indicate a conflict of interest and prevent a lawyer from proceeding with a case. Some types of attorney conflicts of interest include:
- The conflict between the prospective client and a current or previous client.
- The client’s interest conflict with the lawyer’s personal or professional relationships.
- The potential client’s interests do not align with the attorney’s interests.
- Conflict at the law firm level, based on the firm’s work.
Before taking on any case, a diligent attorney will assess potential conflicts. Some conflicts are glaring and very easy to spot, but others may be more nuanced.
How to Manage Conflicts of Interest
Some conflicts of interest will require the lawyer to decline the case, but many times the attorney can still represent the client under certain circumstances.
The specific rules may vary by state, but generally, lawyers can still accept clients with a conflict of interest if:
- The representation follows the laws.
- The client provides informed consent in writing.
- The lawyer still believes they can represent the affected clients with “competent and diligent” service.
- The lawyer does not represent two clients against each other in the same lawsuit.
In some cases, this may require informed consent from the client. The attorney may come to you with a conflict of interest, but as long as you consent to the service they can still represent you.
If the conflict is on the firm level, the lawyer may need to establish a “firewall” to not discuss the case with the lawyer in the firm who has a conflict of interest.
It is best to address complications in the beginning, rather than when an opposing counsel discovers them during ongoing litigation. The best firms are diligent in their checks for conflict and will take all of the required steps to determine if it is ethical and legal to represent a client.