Conflict of interest among an attorney’s clientele is a delicate matter with significant legal consequences if not handled correctly. One such scenario is when an attorney has two clients that want to sue each other. Is there any possible outcome that doesn’t require alienating one client?
The American Bar Association (ABA) notes the following comments accompanying Client-Lawyer Relationship (Rule 1.7 Conflict Of Interest: Current Clients): “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person or from the lawyer’s own interests.”
How do you confirm that a conflict exists? Attorney Ellen Yankiver Suni writes:
Figuring out whether you have a conflict is often the most difficult step. As noted previously, you must determine whether external interests—your own or those of other clients or third persons—are likely to impact your exercise of independent professional judgment. Information is the key to this analysis.
Lawyers must have access to good information regarding their own interests (investments, etc.) and the interests of their families, other clients, and relevant third parties. This can be difficult enough for a single lawyer but is even more difficult for lawyers in firms because they must have access to this information for partners, associates, and staff members as well.
Yankiver Suni adds that correctly assessing the situation is crucial and failure to do is risky. To this end she writes: “It is surprising how many lawyers play ostrich when it comes to conflicts, simply ignoring potential problems. Others assume that they remember all past and current clients and can anticipate conflicts from memory. Both approaches are dangerous; even for lawyers in solo or small firm practice, relying on memory is simply not adequate. All lawyers should adopt and use conflict-checking systems appropriate to the size and type of their practice. Conflict-checking software can be run in conjunction with case management and time and billing software, making it relatively easy to check for potential problems.”
After a full evaluation of the situation, one possible scenario is for both clients to provide informed consent in writing – another is to not represent either party. Laws regarding conflict of interest may vary from state to state.