The attorney-client relationship is one based on trust. The attorney expects honesty and truth from the client so as to be able to provide the highest level of representation possible. By the same token, the attorney is bound to a code of ethics, and each client must be able to trust that the attorney will be honest and professional by adhering to this code.
In legal practices, conflicts of interest arise when an attorney’s interests or the interests of one client overlap with or adversely affect the interests of another client. Failure to disclose real or potential conflicts of interest constitutes legal malpractice.
For example, if a law firm decides to represent a client whose interests conflict with those of another client or a former client, there is a conflict of interest for the firm. Another example is representing opposing parties simultaneously, such as both parties in a divorce or other family law issue, or two parties suing each other. Any personal or private interests on the part of the attorney raise the question of a conflict of interest, such as if the lawyer or anyone related to the lawyer in any way, stands to gain financially from the outcome of the case. Additionally, the lawyer’s private interests should not conflict with their professional interests.
When agreeing to provide representation in a case, lawyers have a responsibility of undivided attention to the client. A lawyer should never use their knowledge of a client’s personal situation to enrich their own financial standing or seek to quickly end a case because of concern about receiving payment. If you feel your lawyer may have a conflict of interest, it is best to seek the counsel of an experienced legal malpractice lawyer in New Jersey who can advise you as to your legal options.
The American Bar Association provides Model Rules of Professional Conduct for its members as a guide. Although they are just a guide, there are also Commentaries to the Model Rules, which outline a four-step process of analysis for determining if a conflict of interest exists and how to handle it if it does.
1. Determine Who the Client Is – By clarifying who will be represented, the question of whose interests are at stake is also clarified. The client may be an entity or an individual working for that entity. The lawyer may be representing one or both parties to a transaction or the entity being formed by the transaction. Another important consideration is who will pay the bill for legal services – the insured or the insurer?
2. Determine if a Conflict of Interest Exists – The lawyer must be able to implement independent professional judgment without the impact of external interests. To determine where external interests might come into play, the lawyer must have extensive information as to their own investments and interests and those of their family members, other clients, and any relevant third parties. Lawyers should use conflict-checking systems to aid in keeping track of potential conflicts within a firm. There is conflict-checking software which maintains data on past and present clients, opposing parties, expert witnesses, close relatives of attorneys and firm employees. Client affiliations should be monitored and updated for changes such as mergers and takeovers or family divorce or remarriage. If a potential conflict is identified, it must be discussed and the discussion and resolution documented. It is helpful to designate one person responsible for ensuring a full check is performed on any potential conflict.
3. Deciding to Represent Despite Conflict – It is possible take on a case despite the existence of potential conflict as very few situations are explicitly prohibited. Most conflicts can be waived, but before taking this step, the lawyer should carefully review all the legal and ethical implications and any practical or business considerations.
4. Obtain Informed Consent – Informed consent should be obtained in writing regardless of whether the jurisdiction requires it. The client must receive an adequate explanation of the material risks of conflicted representation and be informed of the available alternatives. There must also be a clear explanation of how joint representation affects confidentiality between the parties being represented and with those outside the relationship.
Conflicts of interest must be taken seriously. Lawyers who employ a system for conflict checking and who are dedicated to providing each client with the same undivided attention and loyalty will be able to preserve their independent judgment and thereby their reputation.
Your lawyer is someone you hire with the expectation of dedicated representation. If you suspect you are the victim of a conflict of interest, we can help you. Call the Law Offices of Thaddeus P. Mikulski Jr at 609-303-0222 to speak to one of our Princeton legal malpractice lawyers or contact us online. From our office in Pennington, New Jersey, we represent clients throughout Central New Jersey, including those in Burlington County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, and Somerset County.