Be diligent and avoid client conflicts
The trends of more law firm mergers and of attorneys changing jobs more frequently expand the possibility of an attorney-client conflict of interest, a panel of legal ethics experts noted in an American Bar Association program.
Bill Freivogel, who has specialized in corporate legal ethics for 25 years, urged attorneys to “spot the issue … [to] be ahead of the game” and then to seek guidance from an attorney who has expertise in the area.
“The issue is what did you learn, not loyalty,” said Freivogel, a former trial lawyer and longtime attorney in Chicago for companies that provide professional liability insurance to law firms. “If the new matter involves a former client on the other side, generally speaking, you can take it, provided the new matter is not substantially related” to what was done for the former client.
The panel detailed the several ABA Model Rules of Professional Conduct dealing with conflicts of interest at “Conflicts of Interest for Lawyers in the 21st Century; How to Identify and Avoid Them.” The webinar provided a primer on how to foresee situations where conflicts typically arise and what to do about them when they do.
David A. Lohr, a conflicts and compliance attorney at Latham & Watkins LLP in Washington, D.C., observed that the legal profession is “largely self-regulated,” so the burden to police conflicts rests with the attorneys themselves and their law firms. Lohr, who moderated the 90-minute discussion, pointed out that the flux in the market made this even more pressing.
The panel discussed in some detail Model Rule 1.7 through Model Rule 1.10, which pertain to client conflicts of interest. Participants noted that because rules in each state typically vary, it is important for attorneys to understand them in their states of practice.
The panelists methodically walked through some of the questions that attorneys should ask themselves to avoid conflicts, starting with how to define a client. Eve M. Coddon, a partner in the litigation department at Paul Hastings in Los Angeles and the firm’s general counsel, urged attorneys to have a “very robust conflict-checking system” in place.
The group also discussed the concept of client waivers for potential conflicts and urged that they be done in writing or by email.
Glenn M. Grossman, bar counsel at the Maryland Attorney Grievance Commission in Baltimore, suggested one way to lessen the likelihood of a conflict of interest is to formally “close out” legal matters with clients. He urged that unambiguous “disengagement letters” be sent after legal representation is concluded to ensure the party understands it is no longer a client of the lawyer.
The webinar was sponsored by the ABA Center for Professional Responsibility, Law Practice Management Section, Solo, Small Firm and General Practice Division, Section of Litigation, Young Lawyers Division and Center for Professional Development.
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