What is a Conflict of Interest?
One of the client concerns which commonly gives rise to actions for legal malpractice is the conflict of interest. While a conflict of interest may be defined as a loyalty to one party which is likely to have a negative impact on the manner in which a lawyer will advise another party, this short definition of the term may not be sufficient to convey an understanding of how legal malpractice actions based upon an alleged conflict of interest arise.
Conflict of interest cases involve the very deeply held values of trust and loyalty. Trust is at the heart of the attorney client relationship, and clients must be able to trust that their attorney will use his or her independent judgment in representing them. They must also be able to trust that their attorney is loyal to them in his or her advice and actions. When plaintiffs allege legal malpractice based upon a conflict of interest, the rationale behind the allegations is usually that the attorney acted on the plaintiff’s behalf or advised the plaintiff with someone else’s best interest in mind, and as a result, the plaintiff lost their case.
The Rules of Professional Conduct do not prohibit attorneys from representing clients whose interests may be in conflict with each other. They are, however, required to handle the issue of potential and actual conflicts of interest responsibly. Handling conflicts responsibly involves a number of things, including screening for potential conflicts during the client intake process, disclosing potential conflicts of interest, and, in situations where clients decide to go forward with representation by the attorney despite the existence of a conflict, the proper acquisition of informed consent.
Some legal malpractice actions are based upon situations where attorneys take on representation of clients that they should have declined due to a conflict of interest which cannot be waived as per the Rules of Professional Conduct. Attorneys must know the ethical rules in their jurisdiction regarding which types of conflicts may be waived and which may not. If a conflict may be waived and the clients choose to waive it, informed consent must be properly given in writing. A failure to do so may give rise to a malpractice action later on, if the party who supposedly waived the conflict is dissatisfied with the lawyer’s representation for any reason. In fact, failure to obtain proper informed consent is the most common type of legal malpractice action involving conflicts of interest.
Attorneys are also required to use care in defining the lawyer-client relationship, and in managing their contact with potential clients so as not to create conflicts of interest. If an attorney meets with a potential client and decides that they cannot undertake the representation for any reason, including potential conflicts of interest, they must inform the potential client of the declination in a non-engagement letter. Non-engagement letters inform the potential client that they do not have an attorney-client relationship with the attorney who sent them the letter. They also serve the purpose of suggesting that the non-engaged client should seek alternate counsel right away in order to preserve their rights.
If you think that you might be a victim of legal malpractice, whether your claim is based upon a conflict of interest or not, the experienced Memphis Legal Malpractice Attorneys at Bailey & Greer, PLLC are here to help you. To learn more, call (888) 470-9143 to schedule a time to discuss your case. At Bailey & Greer, PLLC, we are small enough to care, big enough to fight, and experienced enough to win.