Conflict of interest

Types of conflict

Concurrent conflict

MR 1.7 prohibits representing two or more clients with conflicting interests where the representation is prohibited by law, or where the representation involves the assertion of a claim by one client against another client in the same litigation. (Dresser industries) Otherwise, a lawyer may represent a client despite a concurrent conflict with another client if two conditions are met: (1) each client gives informed written consent and (2) the lawyer reasonably believes that they will be able to provide competent and diligent representation to each client.

Arguing both sides of the same position: MR 1.7 bars a lawyer from representing a client if the representation of one client will be directly adverse to the representation of another. Therefore, a lawyer cannot argue one side of a legal question in one case and the other side in another case while the first case is still pending in the same court, because invariably one of the clients will prevail, and the one who does not will have had his lawyer arguing against his position. While both clients could give informed consent in writing, it is unlikely that they would.

Some conflicts are nonconsentable. If the lawyer does not reasonably believe that competent and diligent representation can be afforded to each client, a lawyer cannot properly even ask for client consent, and even where it is volunteered it would not be sufficient to allow the conflicted representation.

Multiple criminal defendants: a lawyer usually cannot represent multiple criminal defendants in the same case, unless the Ds interests are in alignment.

Hypo: a couple comes to you for a divorce. Usually routine to only represent one party. You can suggest another attorney to the other party.

Hypo: you represent doctor Jones. Doctor fired by the hospital, she believes that because of age discrimination. While the matter is pending, a buyer of the house comes to you for action of fraud to fix the house. The seller of the house is the doctor.

doctor is a current client, the representation involves the assertion of a claim by one client against another client, but it is not in the same litigation. Therefore, you have to get (1) consent, (2) reasonably believes that the will be able to provide competent and diligent representation to each client.

Dresser industries

Counsel who was representing petitioner manufacturer in two law suits became counsel for a class action brought against petitioner and other manufacturers of oil well drill bits. The lower court denied petitioner's motion to disqualify counsel in the class action. The court held that the lower court clearly and indisputably abused its discretion. Petitioner's right to the grant of its motion was clear and indisputable. Under controlling national ethical standards, counsel was required to exercise independent professional judgment on behalf of petitioner and to avoid even the appearance of impropriety. In its representation of petitioner, counsel had had unfettered access to data concerning petitioner's management, organization, finances, and accounting practices. Counsel engaged in privileged communications with petitioner's in-house counsel and officers in choosing defense and litigation strategies. The public appearance of impropriety was not outweighed by any exceptional circumstances. Rather, counsel's sole reason for suing petitioner was its own self-interest. Thus, disqualification should have been granted. Therefore, the court issued a writ of mandamus.

Hot potato doctrine: A firm may not drop a client like a hot potato, especially if it is in order to keep a far more lucrative client.

Fiandaca

Two appeals regarding the future of an institution in New Hampshire involving parties represented by New Hampshire Legal Assistance (NHLA) have been consolidated in this opinion. NHLA served as counsel for two class actions: one brought on behalf of female prisoners seeking better facilities, and one involving the residents of an institution for the mentally retarded that was under consideration as a temporary replacement for the women’s prison. (The state had, at one point, offered to use the institution as a replacement for the prison that the women were challenging, but NHLA did not accept this offer.) Appellants argue that these cases placed NHLA in an unresovable conflict of interest and that they should have been removed, an argument dismissed by the district court on the grounds of “necessity.”

Although this conflict probably didn’t seriously affect the trial proceedings, it undoubtedly affected NHLA’s actions in the remedial stage. As such, the district court’s remedial order is vacated and the case is remanded for a new trial to determine the proper remedy for the prisoner’s Constitutional deprivation.

Holloway v. Arkansas

Petitioners, three codefendants at a state criminal trial in Arkansas, made timely motions, both a few weeks before the trial and before the jury was empaneled, for appointment of separate counsel, based on their appointed counsel's representations that, because of confidential information received from the codefendants, he was confronted with the risk of representing conflicting interests and could not, therefore, provide effective assistance for each client. The trial court denied these motions, and petitioners were subsequently convicted. The Arkansas Supreme Court affirmed, concluding that the record showed no actual conflict of interests or prejudice to petitioners.

Supreme Court held that attorney's request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interests, should be granted.

Positional conflicts: A conflict would occur when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.

Successive interest

Successive conflict between a current client and a former client

MR 1.9...

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