A lawyer’s conflict of interest with their client is a common basis for legal malpractice. A key professional component of the attorney-client relationship is the lawyer’s duty of loyalty to the client, including protecting and advocating robustly for client interests. When legal counsel has a personal conflict of interest with a client or represents other clients at odds with that client, absolute loyalty and vigorous advocacy become compromised.
Common scenarios involving conflicts include a law firm representing two clients with opposing interests in the same matter or representing a client with overlapping or opposing legal rights or interests vis-à-vis another current or former client. It usually does not fix the conflict if different lawyers within the firm each represent one of the conflicted clients, or if clients receive services at different offices of the same firm.
Conflicts of interest involving different clients can also stifle open dialog or jeopardize client privacy. It is impossible for an attorney to fight for or maintain loyalty to both clients when the lawyer knows confidential information from each one and must strategize with each on protecting interests from the other.
Duty to check for conflicts
Today law firms use software that identifies conflicts between clients of the firm or between a client and an individual lawyer. If a client conflict arises, they must approve of continued representation with full knowledge and understanding of the potential detriment to themselves. Without a fully informed waiver, the lawyer should resign from representation.
A personal conflict of interest arises when a personal legal or financial interest of an attorney (or their family, friend or business) is at odds with a client’s interest. An example might be representation of a client trying to get a zoning change through a local board so they can use their real estate in a certain way, but the attorney or their parent owns the parcel next door and disapprove of how the change would impact their own real estate.
New York conflict-of-interest
A New York City agency recently found that a former city attorney violated city conflict-of-interest rules when he was a city employee and simultaneously represented a private party (a famous comedy club) in its lawsuit against a city councilmember. The suit alleged that she had posted defamatory statements about the club on her city social media account and on city letterhead.
The court dismissed the case at the city’s request. The city Conflicts of Interest Board found he should not have represented a client with litigation interests in conflict with the city while he was a city employee. That the attorney did not charge a fee for the private legal work was irrelevant to the conflicts question, but the city did not impose a fine in part for that reason.
The city wrote that “[p]recise compliance with … [city conflicts law] avoids even the appearance of impropriety …”
Conflicts can be unique and require careful analysis
Conflicts may arise in unexpected and complex situations. While most are obvious, some are close calls. A recent article in Bloomberg Law thoughtfully discusses factors an attorney should consider in assessing a conflicts problem, including:
- Client perspective
- Client protection
- Public perception
- Special duties in the relationship
- Significance of the conflict
- And others
The attorney-author also explains that written disclosures of conflicts to a client must be thorough and detailed so that client waiver and continued representation would be truly informed. He also makes the point that some conflicts of interest are so major that any representation would be impossible even with disclosure and consent.
Important takeaway
Talk to an experienced legal malpractice attorney if you suspect your lawyer may have a conflict of interest personally or with another client that compromises your own rights and interests. If you think your lawyer’s conflict of interest has harmed you already, a lawyer can analyze the facts to determine if you have potential legal remedies to cover your losses.