Attorney Conflict of Interest: What You Need to Know

When you hire a lawyer, you're putting your trust in someone to represent your best interests. But what happens when your attorney has competing interests that might compromise their ability to fully advocate for you? This is where the concept of "attorney conflict of interest" comes into play—and it's something every client should understand.

What Is Attorney Conflict of Interest?

A conflict of interest occurs when an attorney's ability to represent a client might be materially limited by their responsibilities to another client, a former client, a third person, or by the attorney's own personal interests. These conflicts can arise in various ways and can significantly impact the quality of legal representation you receive.

Think of it this way: your attorney should be 100% in your corner. If they're juggling other concerns that pull them in different directions, their judgment might be clouded, and their loyalty to your case could be compromised.

Types of Attorney Conflicts of Interest

Conflicts of interest come in several forms, and recognizing them is crucial for protecting your legal rights.

Current Client Conflicts

This is perhaps the most straightforward type of conflict. It happens when your lawyer tries to represent two clients whose interests directly oppose each other. For example, an attorney cannot represent both the husband and wife in a contentious divorce case. Each spouse needs their own lawyer who can advocate exclusively for their interests.

Similarly, if you're involved in a business dispute, your attorney shouldn't be representing the person or company you're having the dispute with. The competing interests make it impossible for the lawyer to fully advocate for both sides.

Former Client Conflicts

Even after an attorney-client relationship ends, lawyers have continuing obligations to their former clients. If your lawyer previously represented someone you're now in a legal dispute with, this creates a conflict of interest. The attorney has confidential information about their former client that they cannot use against them, which limits their ability to fully represent you.

For instance, if an attorney helped a company with its contracts for years and then tries to represent an employee suing that same company for breach of contract, this would typically be considered a conflict.

Personal Interest Conflicts

Sometimes, the conflict doesn't involve another client at all, but rather the attorney's own personal interests. If your lawyer stands to gain personally from certain outcomes in your case, their judgment might be compromised.

Examples include:

• A lawyer who owns stock in a company that's opposing you in litigation
• An attorney who has a personal relationship with someone involved in your case
• A lawyer who stands to receive a financial benefit based on how your case is resolved, beyond their normal legal fees

Business Transaction Conflicts

When attorneys engage in business dealings with their clients, conflicts can easily arise. The lawyer's role as a business partner may conflict with their professional obligation to provide unbiased legal advice.

For example, if your attorney suggests investing in a real estate deal they're involved with while also advising you on legal matters related to your finances, the situation becomes problematic. The attorney might be tempted to downplay risks or give overly optimistic legal advice to secure your investment.

Why Attorney Conflicts Matter

You might wonder why these conflicts are such a big deal. After all, can't professionals separate their various obligations? The legal profession has determined that the risk is simply too high. Here's why conflicts of interest matter:

Compromised Loyalty

When your attorney has divided loyalties, they cannot provide the zealous representation you deserve. The American legal system is adversarial by nature—your lawyer is supposed to be your champion, not someone trying to balance competing interests.

Confidentiality Concerns

Attorneys are bound by strict confidentiality rules. When representing clients with conflicting interests, they risk inadvertently revealing privileged information or being unable to use relevant information because it was obtained confidentially from another client.

Judgment Issues

Even the most ethical lawyer's judgment can be unconsciously affected by conflicts of interest. A conflict may subtly influence which legal strategies they recommend or how aggressively they pursue certain avenues in your case.

Trust in the Legal System

The rules against conflicts of interest help maintain public confidence in the legal profession. If people believed lawyers regularly represented opposing interests, trust in the entire legal system would erode.

Legal Rules Governing Conflicts of Interest

The legal profession takes conflicts of interest very seriously. They're addressed in the American Bar Association's Model Rules of Professional Conduct, specifically Rules 1.7 through 1.11, which most states have adopted in some form.

Key Rules

Rule 1.7 deals with current client conflicts and generally prohibits representing a client if the representation involves a concurrent conflict of interest. However, in some cases, clients can provide informed consent to waive certain conflicts.

Rule 1.8 addresses specific conflict situations, including business transactions with clients, using client information for advantage, and receiving gifts from clients.

Rule 1.9 covers former client conflicts, prohibiting attorneys from representing someone with interests materially adverse to a former client in a substantially related matter.

Rule 1.10 explains how conflicts are imputed to an entire law firm. Generally, if one lawyer in a firm has a conflict, the entire firm does too, with some exceptions.

Informed Consent

In certain situations, conflicts can be waived if the clients provide informed consent. This means the lawyer must:

• Clearly explain the conflict
• Discuss the implications of the conflict
• Explain the advantages and risks of continued representation
• Obtain written consent

However, some conflicts are so severe they cannot be waived, even with consent. For example, a lawyer generally cannot represent opposing parties in the same litigation, no matter what.

Real-World Examples of Attorney Conflicts

Understanding conflicts of interest becomes clearer with examples. Here are some real-world scenarios:

Dual Representation in Family Law

A couple experiencing marital difficulties seeks advice from an attorney about separation options. The attorney cannot ethically represent both spouses because their interests are inherently adverse. If the couple doesn't understand this, the attorney must explain why separate representation is necessary.

Corporate Law Scenarios

A law firm represents a large corporation in various matters. When an employee of that corporation wants to sue for wrongful termination, the firm cannot represent the employee against its existing client. The firm's obligation to the corporation creates an unwaivable conflict.

Criminal Defense Complications

An attorney represents two defendants charged in the same criminal case. If the best defense strategy for one client would involve implicating the other, the criminal defense attorney has a serious conflict and likely cannot represent both defendants.

Small Town Practices

In smaller communities, conflicts can be particularly challenging. An attorney might be one of few lawyers in town, creating situations where conflicts are more frequent. This doesn't change the ethical obligations, but it may require clients to seek counsel from neighboring communities.

How Conflicts Are Resolved

When a conflict of interest arises, several solutions might be appropriate:

Declining Representation

The simplest solution is often for the attorney to decline representation from the beginning. If you consult with a lawyer who identifies a conflict, they should explain the issue and typically refer you to another qualified attorney.

Withdrawal from Representation

If a conflict arises during an ongoing case, the attorney may need to withdraw from representing one or all conflicting clients. While this can be disruptive to your case, continuing with conflicted representation could lead to much worse outcomes.

Ethical Screens

In some jurisdictions and situations, law firms can establish "ethical screens" (sometimes called "Chinese walls") to isolate attorneys working on matters that create conflicts. This prevents the sharing of information between lawyers representing clients with competing interests. However, such arrangements aren't permitted in all situations.

Client Consent

For certain conflicts, clients can provide informed consent to continue representation despite the conflict. This requires full disclosure and typically written documentation of the consent.

How to Protect Yourself from Conflict Issues

As a client, you can take several steps to protect yourself from potential conflicts of interest:

Ask Direct Questions

When first meeting with an attorney, ask whether they can identify any potential conflicts in representing you. Provide comprehensive information about all parties involved in your legal matter to help the lawyer conduct a thorough conflict check.

Understand the Conflict Check Process

Law firms typically run "conflict checks" before taking on new clients. This involves checking their client database to identify potential conflicts with current or former clients. Ask about this process and when you'll be informed of the results.

Get a Second Opinion

If you have concerns about a potential conflict, don't hesitate to seek a second opinion from another attorney. This is particularly important if the conflict situation seems complex or if you're unsure about consenting to representation despite a conflict.

Review Engagement Letters Carefully

The written agreement establishing your attorney-client relationship should clearly address conflicts of interest. Pay careful attention to any language about current conflicts or how potential future conflicts will be handled.

When Conflicts Lead to Legal Malpractice

In severe cases, an attorney's failure to properly address conflicts of interest can constitute legal malpractice. This might occur if:

• The attorney failed to disclose a known conflict
• The conflict substantially affected the quality of representation
• You suffered actual harm or damages as a result

If you believe a conflict of interest has harmed your case, consult with a legal malpractice attorney. These specialized lawyers can evaluate whether the conflict violated professional standards and whether you have grounds for a malpractice claim.

How Law Firms Manage Conflicts

Reputable law firms implement comprehensive systems to identify and manage potential conflicts:

Conflict Databases

Most firms maintain detailed databases of current and former clients, adverse parties, and related entities. When considering a new client, they check this database for potential conflicts.

New Client Procedures

Before taking on new matters, firms typically require attorneys to complete conflict check forms that detail all parties involved in the potential case.

Regular Updates

As cases evolve and new parties become involved, firms should continually update their conflict checks to identify emerging issues.

Clear Policies

Well-managed firms have written policies on handling conflicts and train their attorneys regularly on ethical obligations.

Conclusion

Attorney conflicts of interest represent one of the most fundamental ethical concerns in legal practice. While the rules might sometimes seem frustrating—especially if they prevent you from working with your preferred attorney—they exist to protect clients and maintain the integrity of legal representation.

When you understand what conflicts are and why they matter, you can make more informed decisions about your legal representation. Always discuss potential conflicts openly with any attorney you're considering hiring, and remember that a lawyer who takes conflicts seriously is demonstrating their commitment to ethical practice—exactly the kind of representation you want on your side.