Conflicts of Interest and Ethical Problems
Regulation of attorney conduct is a critical function of state bar rules and ethical codes, and helps to direct appropriate conduct when real-life situations get complicated. Perhaps the most common ethical conundrum faced by most attorneys today is the question of conflicts of interest—when and where they appear, and how to minimize or manage them appropriately. Don’t be like a recent seminar attendee who told me that he didn’t worry about conflicts until after he signed up the client! Potential conflict issues must be addressed immediately, both before the representation begins and when a potential or actual conflict arises during the representation.
Rule 1.7 of the Georgia Rules of Professional Conduct sets out the definition in reasonably clear terms, mandating that no attorney can represent a client if the attorney’s interests, or those of another client or third person, will “materially and adversely affect” the representation of the new client. The term “material” is a subjective one, but the intent is clear—if the representation will compromise an obligation that you have already pledged to someone else, the ethical attorney should not undertake the new representation. This is true even in matters unrelated to the original representation. For example, if you represent someone as a plaintiff in a negligence suit, you may not represent the defendant from that suit in any subsequent action unless the former client gives written consent.
Rules 1.9 and 1.10 deal with the question of former clients and imputed disqualification in more detail. You may not represent someone whose interests are adverse to a former client’s. The rationale behind this is that even after the work is finished, an attorney owes ongoing duties as part of the former attorney-client relationship that has been terminated. So, even though the relationship is ended, duties of confidentiality and loyalty are still required. Rule 1.9 further mandates that an attorney may not represent someone adverse to a former client in a “substantially related” matter, because it is unethical and unacceptable for an attorney to give the appearance of switching sides. Alternatively, if there is a risk of divulging confidential information by representing the client in question, it would be unethical to agree to the representation, even if the other factors in question would not prohibit it. Rule 1.10 says that if any conflict affects one lawyer in a firm, then it may affect all lawyers in a firm, unless precautions are taken and client written consent is permissible. The simple concept that any juror can easily understand, is that a lawyer cannot serve two masters. As we have written about in the past, a finding of a conflict can have devastating consequences for the lawyers and the clients involved.
It is, however, possible to represent both clients where there is only a potential for conflict if the clients give informed written consent. “Informed consent” is defined in Rule 1.0(h), requiring both consultation with the attorney, written information regarding the “reasonably available alternatives” to the dual representation, and an opportunity to seek independent legal counsel regarding the potential conflict. The classic example is the personal injury lawyer representing both driver and passenger of a car involved in a crash. If, however, a conflict comes about after the beginning of the representation, the lawyer should withdraw. It is also important to keep in mind that if you as a disinterested, and an objective observer can come to the conclusion that the client should not allow the representation, you cannot ethically suggest that they do.
The penalties for breaking these rules are potentially severe, with the worst possibility being disbarment in the case of a willful breach of the Rules. When in question, it is always better to err on the side of caution and decline the representation in the face of potential conflict. However, if you have questions or require clarification, seeking assistance from experienced professionals is never a bad course of action. Chandler & Moore Law understands how complex the intersection between the rules and real life situations can become. We will do our very best to guide you through the analysis and plot a safe course. Contact our office today at (404) 593-2670 to schedule an appointment.