I am always concerned about conflicts of interest. What is the most important thing for me to consider when thinking about conflicts of interest?
There are so many things that need to be considered when faced with a potential conflict of interest in the representation of a client. Identifying the client is an important first step; thinking about other parties or individuals who may be part of the underlying representation is important, too. Having a system to verify whether another person is represented by you or your law firm is very helpful in determining the existence of a conflict of interest.
Determining whether there are adverse interests or “adversity” is one of the more crucial elements of analyzing a conflict-of-interest question. The lawyer must exercise reasonable care and reasonable judgment when considering whether representation of the new client will be adverse to the interests of a different current client or, in limited situations, a former client.
Lawyers sometimes limit their analysis (and thinking) to the exact circumstances of the new representation and don’t think about potential conflicts that could arise during the representation that could be adverse to the interests of another client of the firm. This latter analysis is vital because the lawyer must determine whether there is direct adversity that prevents the representation of the new client or some type of adversity that may occur in the future that would allow for the current client and the new client to potentially waive (consent to) the conflict of interest.
Business and income pressures can make it hard to balance the possibility of a conflict of interest in a representation with the lawyer’s interest in beginning to represent a new client. The best advice is that the lawyer must take the time to analyze the potential for a conflict of interest arising down the road and then talk with another lawyer about the situation. Often, a lawyer is too vested in the desire to represent the new client and might not see all the consequences of that representation.
It is important for lawyers to think about conflicts of interest with enough reflection to ensure that a conflict with another client does not arise in the future. Lawyers also need to make sure that their personal interests do not adversely affect their ability to provide competent and diligent representation to clients.
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» Cite this article: 95 Wis. Law. 47 (April 2022).