All clients are entitled to ethical representation by their attorney, and clients should expect that they will be represented without bias. One area where bias may present itself is conflict of interest.
A conflict of interest is defined as a conflict between professional duties and private interests, or when there is a conflict between the duty to one client and another. As you know, this term always has a negative connotation, as well it should. It’s a keystone of the American Bar Association’s Model Rules for Professional Conduct, and it is built into Minnesota’s Rules of Professional Conduct for attorneys.
The definition of conflict of interest doesn’t give a full description of what situations would fall under the term – it is complicated to evaluate. Here are four areas where conflicts of interest commonly occur.
Representing clients with differing interests simultaneously
This could occur, for example, if an attorney is representing both parties in a divorce case. Another scenario: A party seeks representation from an attorney to sue a neighbor in a civil claims case. If the attorney also represents the neighbor’s business, there would be a potential conflict of interest.
Personal conflicts of interest between attorney and client
This can be difficult to avoid. An attorney should carefully evaluate if there are current or previous personal dealings with a potential client. Examples would be a romantic relationship, friendship, or other affiliation. Minnesota is specific about the first in their Rules of Professional Conduct, stating “A lawyer is prohibited from engaging in sexual relationships with a client unless the sexual relationship predates the formation of the client-lawyer relationship.”
Affiliations could be, for example, group memberships. If a client asks the attorney to represent them in setting up a business that manufactures lumber from local forests, and the attorney belongs to a group that regularly protests the logging industry, this could be seen as a conflict and breach of the “duty of loyalty” to the client.
Current and former client conflicts
As an attorney builds their practice, this becomes increasingly difficult to avoid. An attorney may not take on a new client who has interests that are adverse to the former client’s interests. The grey area here exists in defining what time frame determines a “former” client. There is no legal definition, and the attorney must decide this in an objective manner. It is possible, for example, that the attorney handled previous work for a client, but has not had an open file with them for two years. Whether there is a conflict must be decided on a case-by-case basis, and disclosures must be made when necessary.
Conflicts involving third parties
An attorney should represent the client without having their judgment affected by other parties. This type of conflict may arise when a client’s fees are being paid for by a third party. An example would be a minor who needs representation and whose fees are being paid for by their parents.
If the parents feel that they are entitled to privileged communication, or that they have the right to direct the attorney in the proceedings, this would be a conflict of interest. The attorney in such a situation must take care that they are serving the best interests of the client – not the person paying the bill.
Conflicts of interests are often complicated and can be difficult to discern. A responsible attorney will perform a good deal of research to ensure that they are not caught up in any questionable aspects with a potential client.