Even where there is no direct adversity, there is a conflict of interest if there is a significant risk that an attorney's ability to consider, recommend, or conduct an appropriate course of action for the client will be materially limited as a result of the lawyer's other liabilities or interests. There are a variety of conflicts of interest that can prevent an attorney from taking over a particular case. The conflict can occur between the prospect and one of the attorney's current or former clients. There may also be doubts if a client's interests conflict with the lawyer's professional or personal relationships.
For example, if the client wants to sue a particular business that turns out to be owned by the lawyer's brother-in-law, there is a clear conflict of interest for the lawyer. It is also possible that there is a problem if the interests of the prospect are at odds with the interests of the lawyer. A lawyer must represent the client without having his sentence affected by other parties. This type of conflict can arise when a third party pays a customer's fees.
An example would be a minor who needs representation and whose fees are being paid by their parents. There are two different sets of circumstances that can constitute a simultaneous conflict of interest. One is when the representation of one client would be directly adverse to the other customer. This occurs when the interests of a client require the lawyer to act against the interests of his or her other client.
Despite the guidelines, distinguishing between what constitutes a conflict of interest and what cannot be difficult. Negligence lawsuits can arise from lawyers not adequately recognizing conflict situations and addressing them appropriately. The ability to detect and address conflicts from the start is invaluable. He cannot represent the plaintiff even if the defendant was not represented by counsel in this case, since counsel has a general duty to defend the interests of his client.
Firstly, the lawyer must reasonably believe that he will be able to provide competent and diligent representation to each client affected by the conflict of interest if the clients are fully informed of the circumstances. The clear line rule holds that an attorney cannot act directly against the immediate legal interests of a current client without the client's consent. The duty of frankness requires an attorney or law firm to advise an existing client on all matters relevant to the retainer. After an attorney-client relationship comes to an end, the lawyer still has a continuing duty to former clients.
This type of conflict occurs if undertaking legal representation involves a significant risk that representation is materially limited by the responsibilities of the lawyer to another or the personal interests of the lawyer. There are times when an attorney can represent a client despite an apparent conflict of interest, although the rules in this regard may vary by state. Lawyers should carefully consider the appropriateness and wisdom of wearing “more than one hat at the same time.”. Where a lawyer's own interests are involved in representation, the lawyer should take special care not to use his knowledge of the client's confidential information to the detriment of the client.
If the client is not satisfied with the relationship or representation, the attorney is at risk of disciplinary action or a malpractice lawsuit. Rule 1.8 (j) now explicitly prohibits a lawyer from engaging in a sexual relationship with a client unless a consensual sexual relationship predates representation. Attorneys owe their clients, current and former, the duty of loyalty and the duty to protect confidential information. If there is a “significant” risk that the attorney's interest in the matter will cause the lawyer to materially limit the client's representation, then there is a conflict and the lawyer cannot perform the representation without the client's informed consent.
In fact, if an attorney represents a client knowing that there is a conflict of interest, he may be disciplined by the state bar and sued by the client for legal negligence. An attorney cannot represent a client if the representation involves a substantial risk that the representation will be adversely affected by the attorney's duties to another current client, a former client, or a third party to whom the lawyer has a duty. And, the fact that a lawyer had a sexual relationship with the client will almost always significantly complicate any legal action for negligence. .
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