My office is a revolving door of soldiers, family members, and retirees needing legal assistance. I offer legal advice on matters ranging from family law to landlord-tenant law and everything in between. Therefore, there’s a wide potential for a conflict of interest. As the only Army legal assistance attorney in Anchorage, I sometimes turn away potential clients because a conflicted party came to me first. But nothing from my last job or law school taught me how to tell a visibly upset person that I cannot help them without explaining why. Remember—generally, even the fact that you already represent someone is considered confidential.
The Rules of Professional Conduct, including Model Rules 1.7 and 1.8, among others (and their state-specific counterparts), provide an attorney’s primary obligation to avoid conflicts of interest in representing clients. As a new lawyer, learning to identify and avoid conflicts of interest is not always straightforward. Developing and following a system is key to navigating the conflict check obligations.
Develop a System
Implementing a system beginning at intake is the most important thing you can do to avoid conflicts of interest. Make sure any potential clients list any possible adverse parties or witnesses. In a divorce, that’s easy—often, it’s just the spouse. Other cases may be more nuanced. Think of the client who comes to you because the government alleges that he and his friends broke some equipment, and they all must pay for it. He gets to you first, but can you still see or represent the other soldiers? That may not be an automatic conflict, but tread lightly—it could easily turn into one. Ideally, a paralegal or intern can search your database for potential conflicts before meeting the client. Then, perform a conflict check once you’ve conducted your preliminary interview with the potential client.
Be Prepared for a Conflict to Slip Through
The system doesn’t end at intake. A conflict may arise during the representation or be missed during intake. Ask yourself if it really is a conflict. If it is, ask yourself how it arose. Do you have new information that you didn’t have before? Did someone forget to run a conflict check or, for whatever reason, could not?
You shouldn’t allow situations like this to become common, but you should be prepared to deal with them appropriately. Sometimes, you’ll have to withdraw from representing both parties. Sometimes, other remedies may be appropriate, such as seeking consent if the situation warrants it. Incorporating rules into your system regarding appropriate waivers and factors necessitating withdrawal can help you avoid or address potential conflicts before and after they arise.
What about Dual Representation?
Many couples come to my office seeking wills. I always make sure they sign a letter that states I am representing them both, and if their interests no longer align at any point, I will have to stop working with both parties. In cases where dual representation is appropriate, always ensure that your clients consent to it at the beginning and understand the risks. Make sure you’re familiar with the rules in your state regarding dual representation before undertaking a matter with multiple clients.
I highly encourage a cautious approach regarding conflicts. You lose very little, if anything, by erring on the side of caution. If you think something may be a conflict, bounce it off your colleagues, supervising attorney, or bar. We owe it to our clients and ourselves to give the best possible representation and cannot do that if we must withdraw from representation because we discover we shouldn’t have taken the case.
Turning down new matters or learning about identifying conflicts might not be easy. But if you have a system, stick with it, and trust that you and the people you work with will follow it—it will help you catch a conflict before it’s too late.