Loyalty, not betrayal important in attorney-client relationship
At the cornerstone of every trustworthy relationship is loyalty. Just as important as this first stone is in determining the position of the structure built, loyalty in the attorney-client relationship affects the handling of the client’s overall case. That is why it is crucial that the attorney remains loyal to the client and exercises independent judgment.
The attorney should not represent a client if that representation involves a concurrent conflict of interest. A concurrent conflict of interest exists when the representation of one client will be directly adverse to another client or when there is a significant risk that the representation of any client will be materially limited by the attorney’s responsibilities to a current or former client, a third person, or even by a personal interests of the attorney.
For example, in a custody dispute, an attorney cannot represent both mother and father as their interests are directly adverse. An attorney should not represent a client against a former client. An attorney must also be mindful of a conflict of interest resulting from the attorney’s personal affairs. In such situations, the attorney’s loyalty might be compromised as that attorney’s loyalty would be divided between zealously advocating for one client and protecting the other client, individual, or even the attorney’s own interests from harm.
Conflicts of interest are not unusual. The more reputable an attorney becomes, the more prospective clients seek their services. This ultimately increases the chance of conflicts of interest arising for which it becomes the attorney’s duty to establish appropriate procedures in order to protect against such conflicts. So, when a potential client contacts a law firm, their information and that of the opposing party, including name and address, are gathered. Then, the law firm’s files are checked to ensure that the opposing party has not consulted with or been represented by the firm. This is typically called a conflict of interest check and, if a conflict is found to exist, the attorney should typically decline representation.
Due to unforeseen circumstances, sometimes a conflict of interest arises after representation has commenced. For example, a company owned by one client is being sued by another client whom is represented in an unrelated matter. In such a situation, the attorney should typically withdraw from either client.
Despite the existence of a concurrent conflict of interest, sometimes an attorney may represent a client if certain conditions are met: if the attorney reasonably believes that they will be able to provide competent and diligent representation to each affected client; the representation does not involve claims by one client against another in the same matter; each client gives informed consent in writing; and the representation is not prohibited by law. If there are multiple attorneys in a firm and the conflict affects only one attorney and not the firm as a whole, then, with the client’s informed consent, another attorney in the firm may represent that client. However, the case must not be discussed within that firm in which there is a conflicted attorney. Similar to a gag order a judge decrees, such restrictions in communication within a firm are often referred to as a Chinese Wall.
Although the rules addressing conflicts of interest are lengthy and complicated, they are necessary to protect clients as loyalty and ensuing trust are the essential elements of an attorney-client relationship.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.