Conflicts of Interests

It has been said many times “if you think you may have a conflict, then you probably do.” Perhaps. But, then again, maybe not.

Lawyers owe it to themselves and their clients to provide legal representation when permitted to do so.

A “better safe than sorry” approach ignores the fact that we have available to us a detailed set of Rules to consult. Those Rules tell us when we do, and when we do not, have a conflict of interest.

This author can think of several times when his first thought was that he may have a conflict but, upon careful review of the Rules, he determined that he did not.

This is a personal view, but a lawyer should be reluctant to determine ethical obligations by invoking a default rule such as “I think I might have a conflict, so I must have one.” Let the Rules and Ethics Opinions guide you on this issue.

That being said, the Rules address two primary types of conflicts.

Rule 1.7(a) of the Mississippi Rules of Professional Conduct applies when the lawyer has two current clients. The Rule prohibits a lawyer from representing Client A if the representation of Client A will be directly adverse to Client B.

An exception applies if:

-the lawyer reasonably believes the representation of Client A will not adversely affect the relationship with Client B (and vice versa); and

-both clients give knowing and informed consent after consultation. The consultation shall include explanation of the implications of the adverse representation and the advantages and risks involved.

Rule 1.7(b) states that a lawyer shall not represent Client A if the representation of Client B may be “materially limited” by:

-the lawyer’s responsibilities to Client B,

-the lawyer’s obligations to a third person, or

-the individual interests of the lawyer.

Again, an exception applies if the lawyer reasonably believes:

(1) the representation of Client A will not be adversely affected; and

(2) Client A given knowing and informed consent after consultation.  be directly adverse to Client B.

How easy is it to get “knowing and informed consent” from the client?

The Comment to Rule 1.7 explains that “when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent.”

Question :  If you were the disinterested lawyer being asked, how likely would you be to recommend that a client sign a waiver so that his/her attorney could act “directly adverse” to the client’s interest?

Rule 1.9 states that a lawyer who has formerly represented a client in a matter shall not thereafter:

(a) represent another in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or

(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.

When applying these Rules, lawyers must always keep in mind the possibility imputed disqualification under Rule 1.10:

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.4.

(b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(b) that is material to the matter.

(c) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer  represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(b) that is material to the matter.

(d) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.

www.craigpanterlaw.com

Craig Painter

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