How to Check for Conflicts of Interest As an Attorney

Step-by-Step Guide

1. 1

   Step 1: Identify if a current client is on the other side.

   Whenever someone comes to your law firm with a problem, you should identify who is opposed to them.
   
   It may be a current client.
   
   If so, a conflict could exist.
   
   Rule
   1.7 covers this scenario.Remember that clients can be adverse even in non-litigation contexts, so don’t assume you can avoid checking for conflicts because you are a transactional lawyer.
2. 2

   Step 2: Analyze whether the clients are adverse.

   A conflict exists only if the parties are adverse.
   
   The most common conflict of interest involves a new client who wants to sue one of your current clients.
   
   Here, the clients are clearly adverse to each other so there is a conflict.
   
   For example, you represent A in ongoing employment litigation.
   
   Your new client, B, wants to sue A for pollution.
   
   Here, the clients are adverse to each other.
   
   Each client probably wonders whether you can fully represent their interests.
   
   Clients can be adverse in transactional matters as well.
   
   For example, you might represent Company X, which is being bought by Company Y.
   
   However, you might represent Company Y in other matters.
   
   Here a conflict exists, and you’ll need written informed consent from both X and Y., Sometimes, you can’t represent a client if you will be materially limited in your representation.
   
   If so, a conflict exists.
   
   Here are some common scenarios where a material limitation arises:
   You are asked to represent every member of a potential business partnership.
   
   Here, you are probably limited because you cannot aggressively advocate one person’s position, since doing so will limit your ability to advocate for the other members of the joint venture.A conflict exists between current clients.
   
   Opposing counsel is represented by a lawyer who is related to you., Even if there is a conflict, you can usually still represent the new client.
   
   However, you must reasonably believe you can provide competent representation to both clients.
   
   If you can't, you must turn down the new client.
   
   Also, all sides must give informed, written consent.
   
   Make sure you obtain this consent before beginning the representation of the new client.
   
   There is an exception to the consent rule.
   
   You cannot represent two sides if one makes a claim against the other in the same litigation.For example, you cannot represent both the employer and an employee in the same workplace sexual harassment case.
3. 3

   Step 3: Ask if you will be “materially limited” in your representation.

4. 4

   Step 4: Identify if you can cure the conflict.

Detailed Guide

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