Andrew Rubin, Esq.

The duty of loyalty and conflicts of interest, P.2

In our last post, we began looking at the duty of loyalty and the rules concerning conflicts of interest. As we noted, conflicts of interests can arise with respect to current clients and former clients.

With respect to former clients, attorneys are prohibited from representing a client in a matter which is the same or substantially related to a former client’s matter, when the representation would put the attorney in a position which is “materially adverse” to the former client’s interests. Former clients are able to give written informed consent to such representation, though. 

In managing conflicts of interests, attorneys are supposed to keep close check on the clients they take on so that they don’t compromise their ability to zealously represent their interest because of previous advocacy.

Another important issue those working with an attorney should be aware of is that there can be additional conflicts for an attorney to consider when the attorney is associated with a firm. In such cases, conflicts can become complicated because of the number of potential connections. The general rule in these cases is that no lawyers in a firm may knowingly take on a client when any one of the lawyers alone would be unable to take on the client because of a conflict of interest, whether concurrent or relating to a former client. An exception to this rule is made for cases where the conflict is based on a personal interest of one of the lawyers and that interest is not likely to materially limit the other lawyers’ ability to zealously advocate the client’s interests.

For consumers of legal services, of course, knowing the ethical rules to which lawyers are bound can be helpful to know in advance, but it typically isn’t until something goes wrong that there is consideration of suing an attorney for legal malpractice. Looking back and evaluating the situation with the help of an experienced attorney can help ensure that an individual harmed by a negligent attorney is able to seek fair compensation for his or her losses. 

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