Conflicts: interests, relationships, and ethics

 In Georgia State Bar Grievances, Legal Malpractice

Relationships between lawyers and clients are governed by the Georgia Rules of Professional Conduct. Lawyers must always be wary of conflicts—knowing when and where they appear, and how to minimize or manage them appropriately. Careful lawyers address potential conflict issues before the representation begins. Careful lawyers also immediately address potential or actual conflicts when they arise during the representation.

Rule 1.7 of the Georgia Rules of Professional Conduct states 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 simple concept that any juror can easily understand, is that a lawyer cannot serve two masters. The term “material” is subjective. But if the representation will compromise an obligation that you have already pledged to someone else, the lawyer 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.

Former clients and imputed disqualification

Rules 1.9 and 1.10 deal with the question of former clients and imputed disqualification in more detail. A lawyer can’t represent someone whose interests are adverse to a former client’s. Why? Even after legal work is finished, an attorney owes ongoing duties as part of the former attorney-client relationship that has been terminated.

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. Under Rule 1.10, a conflict affecting one lawyer in a firm may affect all lawyers in a firm, unless precautions are taken and client written consent is permissible.

Informed consent

Consent may be permissible only where there’s a potential for conflict, and the clients give informed, written consent. Rule 1.0(h) defines informed consent, 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.

Other relationships

What about representing friends or family members against each other? There’s a host of situations that “conflicts” might arise in. These may not rise to the level of an actual or potential legal conflict, in terms of the Rules. However, consider there could be other potential problems, including “reputational harm.” Lawyers or other well connected former might stop referring clients to you if you decide to represent someone adverse to them. In these sorts of “relational” conflicts, it’s best to consider the long term effects of the representation, before taking it on.

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. Relationships are important. It’s 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, seek assistance from experienced professionals. 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.

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