Conflicts of interest should be a constant concern of every lawyer. Unfortunately, this is an area where too many lawyers are complacent. The practical consequences of a conflict can include legal malpractice damages, disqualification, forfeiture or disgorgement of fees, and discipline by the State Bar of California. Most conflicts can be cured by effective disclosure and consent. Often, however, the conflict is not even recognized or the written conflict waiver does not meet the requirements of the Rules of Professional Conduct.
Joint representation conflicts occur when a lawyer represents more than one client in a matter at the same time. The Rules of Professional Conduct do not distinguish between potential conflicts and actual conflicts. Jointly represented clients are always potentially in conflict and joint representation requires written disclosure of all circumstances and reasonably foreseeable adverse consequences to the clients and the clients’ written consent.
Successive representation conflicts occur when a lawyer represents a client in a matter where the the lawyer previously represented a client and received confidential information that is material to the current representation.
If a lawyer enters into a business transaction with a client or acquires a security interest adverse to the client, the Rules of Professional Conduct require that the transaction be fair in reasonable, that the terms of the transaction be disclosed in writing to the client in language the client understands, that the client be given written notice of their right to have the transaction reviewed by independent counsel and that the client approve the transaction in writing.
Lawyers are required to provide written disclosure to clients of existing or previous relationships with those who might have an interest in the representation.
The conflict rules are complicated and dependent on case law. Just reading the rules may not be enough. I provide analysis of potential conflicts and assistance in drafting effective conflict waivers. I also offer consultation and representation on remedies, including disqualification.