Conflicts of Interest

Question 1

What is a conflict of interest?

Answer 1

When there is a “substantial risk” that a lawyer’s duty is or would be adversely affected by the lawyer’s own interest or another client or former client

Question 2

What does “substantial risk” describe?

Answer 2

The likelihood of the impairment. It does not need to be certain or probable but must be more than a mere possibility; there must be a genuine, serious risk to the duty

Question 3

What are situations that give rise to conflicts of interest?

Answer 3

(1) competing or incompatible duties to various parties
(2) the lawyer’s own interests (financial, personal, or otherwise)

Question 4

What should a lawyer evaluate in determining whether a conflict of interest exists or may develop?

Answer 4

(i) the duties owed to the client or prospective client
(ii) the duties owed to other clients, former clients
(iii) any outside, personal, or financial interests that may compete with those duties

Question 5

What must a lawyer do if they are permitted to act even where there is a conflict?

Answer 5

(1) must obtain consent for all parties
(2) must reasonably believe that they are able to represent each client without a material adverse effect upon representation or loyalty to the other clients

Question 6

Does client consent give right for a lawyer to always act where there is a conflict?

Answer 6

No, even if there is client consent, a lawyer is not permitted to act where there would be ACTUAL impairment rather than merely the risk of impairment

Question 7

What does consent and full disclosure mean?

Answer 7

A client can only give informed consent if the lawyer informs the client of the relevant circumstances, and the reasonably foreseeable ways that the conflict of interest could adversely affect the client’s interests