One of the things personal injury lawyers can’t do is take a case with conflicts of interest. According to the American Bar Association a conflict of interest exists “if there is a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person.” The key is whether the lawyer’s exercise of independent professional judgment is likely to be unduly influenced by other interests.It is very important that an attorney’s goals and incentives are in line with the clients. When an attorney takes the initial phone call from a potential client, the attorney needs to screen that call for potential conflicts of interest. What that means is they compare that client with current and former clients to make sure that they don’t have an interest that’s adverse to that of this new client. Certain rules apply to former clients and more stringent rules apply in this type of situation with current cases and new clients. The reason for these detailed, specific rules is to provide specific guidelines of what an attorney can and can’t do while staying within the parameters of the law when dealing with conflict of interest.Clients need to be able to trust that their attorney is making crucial decisions and acting in their best interest. You want the client to be able to consider that the attorney is an extension of themselves handling the case. They are hired because they will give the case personal attention and they know the law. They expect that they will be open and honest and rely on the attorneys counsel and not have to second guess whether the attorney is just it in for himself or for some other client.An example of conflict of interest would be if a client was seeking damage from a medical provider because of a mistake the doctor made in surgery that caused serious complications for the client. While discussing the matter during an initial consultation with an attorney the client disclosed that name of the physician. At this time, the attorney realizes that he is currently defending that same doctor in another case. This would be conflict of interest and the attorney could not accept this new case.
Conflict of interest also needs to be avoided within a law firm. Meaning two lawyers at the same firm could not represent opposing sides. Another example of conflict of interest would be an attorney acting as a witness in a case where he is also representing a client. An attorney is also not allowed to be involved in any business transactions with a client.
A client that is shopping for an attorney can ask questions of the lawyer during the initial consultation that will reassure them that there is no conflict of interest. Questions such as , “Do you have a conflict of interest with my case? and Does your law firm use software to monitor your conflict of interest exposure?” Sometimes it is difficult for an attorney to recall all prior clients and there has been a software developed now that aids them in determining any potential conflicts within their firm.
Under the Model Rules of the ABA, an attorney could still represent a client as long as the client is aware of the potential conflict of interest and the client signs a written consent to the representation. In addition the lawyer cannot be representing opposing sides of a case at the same time. It also has to be reasonable to believe that the attorney can handle both cases at the same time. However, even though there are exceptions to handle conflict of interest circumstances, most attorneys will try to avoid potential conflicts because if something goes wrong it could cause malpractice litigation against the attorney and/or the firm. They would not want to knowingly risk their reputations because of a conflict of interest.