In our last post, we began looking at the issue of conflicts of interest in the practice of law. As we noted, the New Jersey Disciplinary Rules of Professional Conduct prohibit attorneys from representing clients whose interests are directly adverse to those of another or when the attorney would be materially limited in his or her ability to represent a client because of his or her own interests or those of another client.
In New Jersey, what is expected of an attorney is clear in principle. In screening for conflicts, the attorney may not accept a client unless he or she reasonably believes the representation will not be adversely affected by the conflict in question. It isn’t only the attorney’s subjective belief that counts, though, but also the objective facts and circumstances concerning the conflict. Both the attorney’s subjective belief and the objective facts must be that there would be no directly adverse interests.
What, though, when a client provided informed written consent with respect to the conflict? The rules state that informed written consent can waive the conflict, but the key is that the attorney must still reasonably believe that he or she will be able to competently and diligently represent each affected client. The representation must not be prohibited by law either, nor may it involve a situation where one client is pursuing a claim against another of the attorney’s clients in the same litigation or other court proceeding.
The law concerning conflicts of interests is not always easy for clients to understand, particularly when it comes to specific applications of the rules, the duties attorneys have to former clients, and the imputation of conflicts of interest to attorneys working in a multi-attorney firm. Those who believe they may have received substandard representation due to a conflict of interests can and should consult a knowledgeable attorney to have their case evaluated and to determine their legal options.