Can A Lawyer Represent a Client if the Lawyer Has a Conflict of Interest?
SOMETIMES.
Let’s look at the situation in more detail.
When the rules that govern attorney conduct do not prohibit representation, a lawyer can represent a client, even if a conflict of interest exists, as long as the conflict is disclosed in writing and the client gives written informed consent (where required), despite the conflict.
A surprising number of conflicts of interest–though not all–can be addressed, and representation of the client can still go forward, with proper disclosure and consent.
WHEN MUST A LAWYER MAKE WRITTEN DISCLOSURE OF A CONFLICT OF INTEREST?
A lawyer (here, the “Disclosing Lawyer”) must make a written disclosure to a client (and cannot agree to represent, or continue representing the client until the disclosure is made) when the Disclosing Lawyer knows or reasonably should know:
- A lawyer that represents a different party in the relevant matter is:
- a first degree relative (parent, sibling, or child) of the Disclosing Lawyer
- the spouse of the Disclosing Lawyer
- a person who lives with the Disclosing Lawyer (whether or not they are romantically involved)
- someone with whom the Disclosing Lawyer has an intimate personal relationship
- The lawyer has a personal, professional, legal, or financial relationship with (a) another party, or (b) a witness in the client’s matter.
The disclosure must be made “in writing,” but for this purpose email and other forms of electronic communication–including audio and video messaging–also qualify as “writing.” However, lawyers should keep a copy of the disclosure. Clients should, too–in case an issue arises in the future about the precise information that was disclosed.
The law does not mandate the precise nature or content of the disclosure. However, a proper disclosure should contain the relevant information, in enough detail for the client to understand the nature of the conflict and the potential issues, including any reasonably foreseeable negative consequences that could arise from the conflict of interest.
WHAT IS AN “INFORMED CONSENT” BY A CLIENT?
For a client to make an “informed consent” to a conflict disclosure, the lawyer must explain the relevant facts, circumstances, and risks in appropriate detail. This explanation must include any actual and/or reasonably foreseeable negative consequences of the conflict and the lawyer’s proposed conduct.
Disclosure of reasonably foreseeable consequences requires the lawyer to explain how the conflict might impact the client and/or the lawyer’s representation of the conflict. The explanation must be presented in a way the lawyer believes the client is capable of understanding. While the lawyer does not have to disclose and explain every possible circumstance or consequence, the lawyer’s conduct generally must be reasonable in scope and content.
Essentially, informed consent requires that the client is given enough information to evaluate the risks and make a decision about whether or not (s)he wants the lawyer to continue (or undertake) the representation, despite the existence of an actual or potential conflict of interest.
It’s important to note that the lawyer must not try to pressure, coerce, or threaten the client into giving consent. The decision whether or not to consent to a conflict of interest belongs to the client alone, and it is inappropriate for a lawyer to attempt to influence that decision in inappropriate ways. If you believe a lawyer behaved inappropriately in making (or failing to make) a disclosure, or when seeking your informed consent, contact an experienced lawyer immediately for an evaluation of your legal rights.
***
Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
You may lose or compromise your rights if you delay in consulting legal counsel. Most legal claims (and defenses), as well as legal and court procedures, are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other legal claim, consult an experienced lawyer immediately for an evaluation of your individual rights and claims.
