The Facts on Conflicts of Interest
If you have hired a lawyer, chances are that you have run into a difficult situation. Lawyers are your personal guides through the complex legal system, protecting you from incorrect application of the law and advocating for your legal rights.
But what happens when your lawyer isn’t entirely on your side? This can occur when attorneys have a conflict of interest—a situation that makes it difficult for a lawyer to put their best efforts into your case because they are attempting to serve their own interests or the interests of another rather than yours. The laws forbidding conflicts not only rest on an understanding of human nature but on the utterance of the Divine Nazarene, when he said “No man can serve two masters; for either he will hate the one and love the other; or else he will hold to the one, and despise the other.” Hume v. Baggett & Baggett, 221 S.W. 1002, 1003 (Tex. Civ. App.–San Antonio 1920, no writ)(quoting Matthew 6:24 (King James ed.)).
Your attorney is your legal representative, which means he or she is obligated to act in your best interests no matter what. However, things can get complicated if your attorney has a personal stake in the outcome of your case (other than a contingency fee) or an obligation to protect the interests of others that could be impacted by your case. When situations like this come up, there is a conflict of interest—your attorney is pulled in different directions by competing priorities.
Common Situations that Result in a Conflict of Interest
Under most circumstances, though not all, conflicts of interest occur unintentionally. However, effective lawyers have preventative measures in place to identify and address potential conflicts early in the attorney-client relationship. These are some of the most common situations that come up:
- Attorneys moving to a new employer work on cases involving past clients from previous employers. In this situation, lawyers may have ongoing responsibilities to past clients, such as the duty of confidentiality, making it impossible to fully represent the new employer’s interests.
- Attorneys represent more than one individual involved in a case. This may occur when individuals begin with the same goal, and they elect to share representation. However, as the case progresses, their individual interests are not compatible.
- Attorneys have a personal stake in the outcome of the case, other than a simple contingency fee. This is not always as obvious as it sounds. Lawyers may have investments in a company that could be adversely impacted if your case is successful, or they may have relatives that are associated with the opposing party. In either case, attorneys that could benefit from your loss have a conflict of interest.
Under limited circumstances, your attorney might still be able to represent you, even if one of these conflicts of interest applies. However, attorneys must disclose the conflict to everyone involved, in writing, and you must have an opportunity to consider your options. If you choose to go forward, you will be required to sign an acknowledgment that states you understand the conflict. Even then, the conflict of interest may still prohibit the lawyer’s employment.
Questions You Can Ask to Avoid a Conflict of Interest
When you first meet with an attorney, remember that you are conducting an interview just as you would any other person you might hire. Lawyers work for you, and you can ask questions about how you will be represented before you make a final decision about who represents you. The following questions are a good place to start:
- Do you have legal malpractice insurance? Remember, anyone can make a mistake. Choose an attorney that is prepared in case an error occurs so that you remain protected.
- Do you foresee any conflicts of interest that would prevent you from working on this case? The answer to this direct question will give you important information. Does your attorney take your inquiry seriously, or do you feel that the question is brushed aside?
- What is your process for preventing conflicts of interest? The answer to this question should involve a specific, systematic procedure. Reconsider hiring an attorney that gives a vague response or states that there is no true process in place.