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Hotline Questions: Conflicts of Interest
Post on June 4th, 2020

Conflicts of interest are frequent questions to the OBLIC Hotline. Lawyers must carefully evaluate potential conflicts under the applicable Rules of Professional Conduct. Conflicts are very fact-specific, which can make the conflict of interest evaluation difficult.

Perform conflict checks for all new clients and all new matters:

  1. Maintain firm data that can be searched thoroughly to capture conflicts that could arise under Rules 1.7 through 1.11.
  2. Utilize conflicts checking software and check with all attorneys in the firm via email. The most important element in this step is that each attorney promptly reviews the email request to determine whether they have represented any of the potential clients and responds immediately.

Be aware of common conflict of interest situations

A common conflict situation occurs when an attorney in the firm has represented a client in a matter and an adverse party in that matter contacts a different attorney in the firm about representation. These types of conflicts can arise in all areas of practice but a scenario we commonly discuss with insureds involves a potential new domestic relations client who is adverse to a former client who was represented in a non-domestic relations matter. The conflict evaluation involves Rule 1.9(c)(1), governing the use of information relating to the new representation to the disadvantage of the former client and an evaluation of whether it is a “substantially related matter.”

Rule 1.9, Comment [3] and Rule 1.0(n) are helpful in illustrating a “substantially related matter”:

  • A lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person’s spouse in seeking a divorce.
  • A lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations. However, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent.

Conflict checks must involve all attorneys at the firm:

Rule 1.10(a) is likewise instructive stating that, “[w]hile lawyers are associated in a firm, none of them shall represent a client when the lawyer knows or reasonably should know that any one of them practicing alone would be prohibited from doing so by Rule 1.7 or 1.9.” Comment [2] to Rule 1.10 explains that the rule of imputed disqualification gives effect to the principle of loyalty to the client as it applies to lawyers who practice in a law firm.

Please call me at 614-572-0620 with any questions you may have concerning potential conflicts of interest.

Gretchen K. Mote, Esq.
Director of Loss Prevention