How to Avoid Conflicts

By James M. McMullan

Many years ago, as a solo with so few cases that my Trapper Keeper was my file cabinet, I had a strangely perverse idea of what a conflict check was. It usually went along the lines of “Who are you divorcing?” or “Who rear-ended you?” or “What store did you say you fell in?” If the potential defendant’s name didn’t sound familiar, then there was no conflict. Luckily, I discovered the error of my ways before any clients were affected or the disciplinary commission gave me a private lesson. It’s not that my system was “wrong,” it was just incomplete.

Defining the Conflict
Conflicts are more than just having a former client as an adverse party. Conflicts can arise in myriad ways:

• Representing a client whose case affects another client (e.g., co-defendants in a criminal matter).
  
• Entering a business transaction with a client or acquiring a security interest that is adverse to a client.
  
• Using information gained from your representation of a client to that client’s disadvantage.
  
• Representing both parties to a divorce (even if they assure you, “we’ve got everything worked out already, we just need a lawyer to do the paperwork”).
  
• “Buying a case” (e.g., paying a personal injury client for the chance to work the case; note this is not the same as advancing litigation costs).
  
• Taking money for your representation from someone other than your client and without your client’s knowledge.
  
• Engaging in sexual relations with a client after being retained as counsel.

All these conflicts apply not only to the individual lawyer on the case but to all the attorneys in that lawyer’s firm. Once upon a time, firms built “Chinese Walls”—a barrier between the conflicted attorney and the rest of the firm. The theory was that because the conflicted attorney did not see any memorandums or documents or anything else from the current case, the firm no longer had a conflict and could undertake representation of the client causing the conflict. The time of the Chinese Wall has passed, however. The ABA Model Rules of Professional Conduct (2004) state:

While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. (Rule 1.10 Imputation of Conflicts of Interest: General Rule)

The ABA Model Rules are advisory in nature and are offered to the states to be used as written or as a guideline to the governing body when drafting its own rules of professional conduct. As such, some states have taken an even stricter stance regarding “imputed conflicts.” Alabama, for example, does not even allow for the “personal interest” exception found in the ABA’s version:

While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.2. (Alabama Rules of Professional Conduct, Rule 1.10)

So how do lawyers know if they are conflicted? It depends. The research must begin with the rules of professional conduct in that lawyer’s state. Although most states have used the ABA Model Rules of Professional Conduct as a starting point, not all states have adopted them in their entirety, as illustrated above.

Spotting the Conflict
In the old days, you either had so few cases that you could remember who all your clients were, or you had a stack of index cards with a rubber band around them. This is certainly one area where computers have fulfilled their promise to make our lives easier. Setting up a database of clients’ names and affiliations is relatively simple, even without fancy software. A word-processing program will do just fine. Simply create a document containing the names of all the clients that you have represented, along with the file name and number. Now, when a potential client comes calling, simply use the word processor’s “Find” function to look for matches with the potential client’s information. If you move up to a spreadsheet program, your conflict-checking system can do double-duty, storing addresses, e-mails, and any other contact information you can get. If you step up again to dedicated practice management software, a conflict-checking system is standard as part of the program. There really is no excuse for you not to run conflict checks as an early part of your intake process.

Regardless of how you create this database of past clients, the more ways you can put it to use on a daily basis, the more likely you are to keep it up-to-date—and the less likely you are to resent having  to do so. If for no other reason, this database will prove invaluable if you get hit unexpectedly by a meteorite and somebody must close your practice down.

Avoiding the Conflict
So let’s say you spot a conflict—now what? There are only two paths you may take from this point: continued representation or withdrawal of representation.

Continued representation. In order for you to continue to represent your client once a conflict has arisen, the client must knowingly and intelligently waive the conflict. This is usually accomplished through—yep—a document called a waiver of conflict. The conflict-of-interest section of the Model Rules of Professional Conduct is written not to punish attorneys (despite what some think) but to protect the client. The disqualification of a lawyer because of a conflict that the client is unconcerned about is not only restrictive for the attorney but infringes on the client’s right to hire counsel of his or her choice. Hence, the possibility of a waiver.

To intelligently waive the conflict, clients must receive full disclosure of the conflict and its effects on the representation they will receive. Some advocate that clients should retain separate and independent counsel to advise them on the conflict and the ramifications of waiving the conflict. This may appear to be overkill—something you would expect Big Law to encourage. But when you are seated in the hallway outside the disciplinary commission’s hearing room, it will seem like a really easy thing to have done. You must decide the amount of risk you are comfortable with.

One recent trend is to have the client sign a pre-conflict waiver of conflict. Again, depending on your state this may work, or it may be another piece of worthless paper created by lawyers trying to protect themselves. If a disciplinary commission requires a client to knowingly and intelligently waive any conflicts, they will not be impressed by your pre-conflict waiver of conflict. “Ms. Lawyer, if your client waived this conflict before he knew it existed, how did he know what conflict it was that he was waiving?” Kind of useless at that point to respond with, “But, but, but . . . my client signed a waiver  of conflict. He waived it.”

Withdrawal of representation. If the conflict is too great to waive, your client does not want to waive it, or you don’t have the nerves to sleep with only your pre-conflict waiver of conflict under your pillow, then you must withdraw your representation. This is accomplished by several methods depending on the type of representation. Are you representing a defendant who has been sued and you are at the summary judgment stage? Then you need the permission of the court in most instances. Although sometimes reluctant to let an attorney withdraw just because he or she has not been paid, courts are usually much quicker to wave goodbye to an attorney who has become conflicted. The courts are not there to make sure an attorney makes a living, but they are there to ensure that the parties are adequately represented, or at least represented by the counsel of their choice.

If you must withdraw from representing a client in a non-litigation setting, hold a face-to-face conference, followed with a writing memorializing the conference. Send one copy to your client and one to your file.

If the client is a new, potential client, then a non-engagement letter sent to this person is the appropriate way to disengage yourself. The letter need not provide the reason or rule; a simple “the bar won’t let me represent you” will suffice. I always advise potential clients to seek alternative counsel immediately. I usually include contact information for the local or state bar association’s lawyer referral service. I do not give any advice about when the statute of limitations will run. This is a hotly debated topic. I believe the giving of a deadline is legal advice in and of itself, and that is what I am trying to avoid by sending the non-engagement letter: legal advice and representation. Besides, I don’t like to work for free, and I certainly don’t want the liability if I give the wrong deadline because I didn’t have all the facts when I made my deadline pronouncement. Some people say that not giving a deadline is wrong. I don’t buy it. My letter leaves potential clients in no worse condition than if they had never contacted me.

Conclusion

Conflicts of interest take down a fair number of good lawyers because the rules defining conflicts and how to handle them are not always intuitive. If a lawyer takes the time to learn the rules and implement procedures in the office to identify and respond to conflicts as they arise, conflicts of interest need not submarine a lawyer’s career. The key is to catch the conflicts of interest early—before they become conflicts.

• James M. McMullan practices throughout Alabama. He may be reached at jimmymac@choplaw.com.

   

  Copyright 2010