When you hire an attorney, you are entitled to their uncompromised loyalty and fierce advocacy. Your legal counsel has a fiduciary duty to you – which roughly means you should be able to trust that they would have your back in any situation even if no one were looking over their shoulder to see if they were doing the right thing for your interests.
But what about when an attorney has a current or previous client with interests adverse to your own? Or when their loyalties could be divided between you and one of their personal connections? If a conflict of interest results in a breach of the lawyer’s duty of care to you and that infraction harms you, you may have a claim for legal malpractice or legal negligence.
Conflicts of interest with clients is a frequent basis for malpractice
The dedication of a lawyer to their client should never be questionable or doubtful. But a concern about whether the required strength of loyalty is possible arises when the attorney has a professional or personal conflict of interest. Examples:
- A lawyer was on the board of a company you want to sue.
- An attorney’s spouse owns land in an area in which you want to advocate for rezoning.
- Legal counsel was in a social club with your spouse whom you want to divorce.
- A lawyer previously did intellectual-property work for a partnership you want to challenge in a patent infringement matter.
- A law firm just laterally hired a new associate away from another firm that represented your main competitor in litigation against your company.
- And many other scenarios in which a conflict of interest compromises the duty of loyalty
Potential problems with conflicts of interest include the compromise of confidential information between adverse clients or a lawyer’s difficulty with advocating for a client’s goals when they are at odds with their own interests or those of a relative, friend or a related business or third party.
The duty of care includes a rigorous conflict-checking protocol
When a lawyer or law firm considers a new client, professional ethics rules require that the firm conduct a comprehensive sweep of prior and current clients to check for conflicts. What kind of conflicts check is sufficient depends on the rules in the particular jurisdiction and for malpractice purposes what a reasonable lawyer would do in similar circumstances.
Most firms utilize specialized software designed to crosscheck new and previous clients and opposing parties. Programs are relatively sophisticated with some checking on the next level for name changes or business succession like mergers or acquisitions. Some law firms follow up an automated check with asking its individual lawyers to approve a client before finally agreeing to representation.
What is reasonable can vary by firm and circumstances. Is it a solo practice with a local clientele? An international firm with multiple offices worldwide? A specialized law firm that only practices in one or two areas of law? What about incorporating information about previous clients of a new partner coming from another law firm?
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If these scenarios sound familiar or you suspect a previous lawyer financially or otherwise harmed you by representing you with a conflict of interest or by not disclosing that conflict to you so you could give knowing approval or get other representation, talk to a legal malpractice lawyer about your options.