Attorney Conflict Of Interest Rules

Attorney Conflict of Interest Rules

A conflict of interest occurs when a lawyer’s ethical obligations to one client conflict with the interests of another client. A conflict is defined as “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.” [Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 426.) The Rules of Professional Conduct set forth and are intended to protect those duties owed by attorneys to their clients. These include the duty of undivided loyalty, the duty of confidentiality, the duty to exercise independent judgment, the duty to provide
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Attorneys must ensure if they are providing a written disclosure, that the disclosure provides the client or former client of the “relevant circumstances” and the “actual and reasonably foreseeable adverse consequences” of the conflict. [CRPC 3-310(A)(1).) Only after such a written disclosure can the client effectively provide informed consent. In California “informed written consent” requires a finding that the client (a) discussed the drawbacks of the representation with counsel; (b) is aware of the dangers and possible consequences of the representation; (c) understands her right to conflict-free representation; and (d) voluntarily waives that right. (People v. Baylis (2006) 139 Cal.App.4th 1054, 1068.)

Attorneys must recognize a conflict of interest prior to beginning representation to ensure they do not subject themselves to liability. Where an attorney fails to recognize a conflict, she may be later removed by a court from the representation and may be subjected to State Bar discipline. To be disciplined, the State Bar must find the attorney wilfully violated an ethical rule. An attorney who fails to resolve such conflict early on may be liable for malpractice where the client is harmed as a proximate result of the
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This means not only checking for actual conflicts, but potential as well. Potential conflicts may arise from opposing parties, including their witnesses. Thus, it is imperative that attorneys maintain client databases and perform frequent checks, even as litigation proceeds and new parties are identified. A new source of conflict issues for attorneys is the attorney web site. Where inquiries containing information concerning legal issues are received, a duty of confidentiality may be created. To aid in preventing any such duty, attorney web sites must include a clear statement that any information disclosed will not be treated as confidential.

If you are an attorney and need help to identify or resolve a conflict of interest, or are facing malpractice liability or state disciplinary action as a result of a conflict, please contact Marc Zimet or Alan Jampol of Jampol Zimet LLP at (213) 689-8500 or at or They would be more than happy to help you.

By: Alan

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