Attorneys are required to follow a code of ethics that governs their behavior while zealously representing a client. In general, an attorney must prioritize loyalty to their client and avoid engaging in any actions that could harm their client’s best interests. One of these obligations is to steer clear of any conflicts of interest. If a conflict of interest arises and the client suffers harm as a result, they may have grounds for a legal malpractice claim.
A conflict of interest arises whenever any conduct by the attorney does or could affect the attorney’s loyalty to their client, or when the attorney’s own best interests or loyalty towards another party may materially affect their representation of their client’s interests.
Examples of Conflict of Interest
There are numerous examples of what can constitute a conflict of interest when you retain an attorney to represent you and your case:
- Representing multiple parties in a personal injury case (driver and passenger)
- Representing multiple defendants in a criminal matter (co defendants in an alleged crime)
- Representing both sides or parties in a divorce case
- Representing both sides in a prenuptial agreement
- Representing a corporation while acting as its corporate officer, director, or shareholder
- Representing a corporation and a corporate officer, director
- Representing a party against another person or entity with whom the attorney provided extensive legal services in past transactions
- Representing both seller and buyer in a business or real estate sales transaction
- Not disclosing that the attorney has a financial interest in a matter that is adverse to the client’s
In other words, when your attorney’s duty or loyalty to you and your case is divided with or among other parties, there is a conflict of interest. Since a lawyer has a fiduciary duty to act in his or her client’s best interests, representing more than one person for the same matter or transaction makes it nearly impossible to fulfill this duty as parties will have disparate interests that often conflict with other parties.
What Are the Potential Risks
An example of a conflict of interest is when an attorney represents both the buyer and seller in a business deal. In this situation, the attorney may struggle to provide impartial advice due to the conflicting interests involved. Another instance is in a divorce proceeding involving property or child custody issues. While the attorney may try to maintain a neutral position and encourage the parties to reach a mutual agreement, it can be difficult to advocate for a position that the other party disagrees with or that adversely affects them. Additionally, the attorney’s own biases and loyalty to one party may impact his or her duty to represent both parties equally. Unless an attorney is hired as a mediator, they cannot represent both parties.
Remedying a Conflict of Interest Situation
Not all conflict-of-interest situations are harmful or are adverse to your interests. If such a circumstance arises, your attorney is obligated to recognize it and to fully inform you and any other client or party who is affected by the potential conflict. All risks need to be fully disclosed by the attorney. If you still desire to retain the attorney, then you must sign a waiver consenting to the representation and acknowledging the risks. It is highly recommended that you discuss the situation with an outside attorney who can review the waiver and the potential risks or how your interests may be affected, and whether you should consider retaining another attorney.
A problem arises when a client feels that his or her interests took a backseat to those of the other party. If the attorney fails to completely disclose his or her prior association with the other party or the degree or magnitude of the services provided, then the attorney risks being a defendant in a legal malpractice claim if the client suffers damages or harm as a result.
Retain a Legal Malpractice Attorney from Burns and Jain
Conflict of interest is a common topic in legal malpractice claims. Any time an attorney fails to disclose a prior association with an opposing party or agrees to represent both parties in a transaction or proceeding, full disclosure may not be enough to protect the client if his actions benefited one party to the detriment of the other. Call us at (617) 227-7423 to discuss your concerns with a highly experienced legal malpractice attorney.