13.01. Introduction

This is the first topic of several addressing conflicts of interest. Some of this material can seem confusing, but the underlying point is really pretty simple: under what circumstances is a lawyer so limited in his/her obligations to someone other than the client/prospective client sitting in front of the lawyer that she cannot either undertake the representation or can be disqualified after the representation has begun? It is that simple. To demonstrate, consider the conflict of interest rule under the 1908 Cannons of Professional Ethics:

6. Adverse Influences and Conflicting Interests

It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.

Certainly the current rules provide more details to help determine when a conflict exists – but the underlying rationale for the prohibition is the same as the 1908 version of the rule. Really, the hardest issue is determining the nature of the conflict involved. And to that end, you should strive to understand the tests for conflicts in various circumstances. For example, what is the test when a lawyer is attempting to determine whether she has a conflict when she is contemplating taking a case that would cause her to go adverse to a current client? A former client? When a lawyer is engaging in a business transaction or some other relationship with a client? You should strive to be able to identify the ethical obligations and limitations in each of these situations.

This topic addresses the situation when a conflict arises between a current client and some other interest that would restrict the lawyer from representing both interests. This is where the first concepts of “conflict” arose in the law – even before adoption of ethical rules. There are two types of conflicts that are recognized in the current Rules of Professional Conduct: a lawyer is prohibited from going “directly adverse” to a current client (Rule 1.7(a) (1)) and is prohibited from taking on representation when the lawyer’s representation would be “materially limited” by the interests of the lawyer or another person (Rule 1.7(a) (2)).  There are other situations where a lawyer can have a conflict of interest with a current client (a number are set out in Rule 1.8), but right now we are addressing conflicts that arise in accepting representation or continuing representation of a client.  

A note here on the “real-life” application of the conflict of interest rules, and a word of caution. Of course you know that violation of a Rule of Professional Conduct is an ethical violation (Rule 8.4(a)). Therefore, a lawyer can be subject to discipline for operating under a conflict of interest. In reality, however, conflict of interest claims most often arise in litigation through a Motion to Disqualify. This means that you need to be very familiar with the Rules related to conflict of interest – and perform a conflicts check before agreeing to represent a client in a matter. These motions are not to be taken lightly. A successful disqualification motion can result in a tremendous hardship to you and your client. If you are disqualified, your client will have to hire another lawyer – costing more time and money. You will lose out on a client who might blame you for failure to foresee this sooner. Even if you perform a conflicts check, you still may face a motion to disqualify as a tactical procedure by the other side — to get you or your firm off a case or to cause your client the expense of defending the motion perhaps to force a settlement. You need to have a working knowledge of the conflict of interest rules to anticipate or respond to these situations.