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Massachusetts Legal Malpractice Conflict of Interest News

Some instances of conflict of interest for attorneys are obvious.  Your former divorce attorney can’t represent your former spouse in a subsequent action regarding child support.  Your business attorney can’t represent your competitor in a case you bring against the competitor.  Your real estate attorney can’t represent your neighbor in a conflict over boundary issues.

What is a Conflict of Interest?

Conflict of Interest:  Rule 1.7 of the Massachusetts Rules of Professional Conduct states that a lawyer can’t represent anyone if “the representation of one client will be directly adverse to another client . . . or there is significant risk that the representation of one . . . client will be materially limited by the lawyer’s responsibilities to another client . . . .”

With powerful electronic software, you would think that it would be easy for small and large law firms to check for conflicts, or potential conflicts.  However, with firms getting bigger, and attorneys moving from firm-to-firm, there are more nuanced and potential conflicts.

Recent Conflict of Interest Cases in Massachusetts

In Mailing v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 473 Mass. 336 (2016), a multi-state patent law firm represented two different inventors regarding similar patent applications (for eye glass frames).  While they both “won” patents, Mailing claimed that because the competing company had a new and similar patent, they were deprived of investors and lost customers.  While the Supreme Judicial Court (“SJC”) agreed the two companies were “economically adverse,” it did not agree regarding the firm having a conflict of interest by representing both companies for the specific legal work performed.  Following this case, the SJC issued a warning regarding conflicts of interest:  lawyers must check for conflicts of interest in competing economic opportunities.

In another area of conflicts of interest, Bryan Corp v. Bryan Abrano, 474 Mass. 504 (2015), a law firm was representing a company in a collection matter when minority shareholders of the company asked if the law firm could represent the minority shareholder against the company and its majority shareholder.  Sound like a conflict?  The Supreme Judicial Court agreed:  it found a breach of the implicit duty of undivided loyalty.

In Gillette Co. v. Provost (Mass. Superior Court, May 5, 2016) a Massachusetts Superior Court judge in the Business Litigation Section, citing the Mailing decision found that notwithstanding the fact that Attorney Chester Cekala “developed expertise” this is “beside the point” once patents become public documents and the attorney is not conflicted out when representing a competing company.  Attorney Cekala was simply helping his new client avoid patent infringement and not using any privilege information from having represented Gillette.

What is the Hot Potato Doctrine?

The Hot Potato Doctrine applies to lateral hiring of lawyers.  When an attorney moves from one frim to another firm in which the second firm is representing a party adverse to the first firm, the lawyer is a “hot potato” and caselaw suggests that the firms have the client sign a waiver of the potential conflict of interest.  There is a discussion of this in Markham Concepts v. Hasbro, 196 F. Supp. 3d 345 (D. RI 2016).

Conflict of Interest Attorneys Burns & Jain Give Free Consultation

If you believe that you have been a victim of conflict of interest, call Attorney Neil Burns and Attorney Roshan Jain to review your options.  If you have damages that can be proved, they will take your case on a contingency basis.  Call for a free consultation:  617-227-7423