Conflicts of Interest
Two different conflicts
Current-client conflicts concern loyalty: you cannot act where your duty to one client is adverse to, or may be materially limited by, your duty to another. Former-client conflicts concern information: you must not act against a former client in the same or a substantially related matter, or where confidential information could be used against them.
Concepts
- Joint retainers: permissible with informed consent and a clear agreement on what happens if the clients fall out; you cannot keep acting for one against the other in the same matter.
- Personal-interest conflicts: business dealings with clients, personal relationships, gifts and legacies generally require full disclosure and independent advice.
- Lawyer as witness: if you will be a material witness, you should not act as advocate.
- Imputation and screening: conflicts may spread to the firm; screening and informed consent can sometimes cure them, but not where the conflict is non-consentable, such as acting against your own client in the same matter.
- Consent must be informed, given with independent advice, and confirmed in writing.
Traps
Believing consent cures every conflict; missing positional conflicts where you act for two clients bargaining with each other; overlooking a conflict created when a lawyer moves firms; assuming a former client's objection fails merely because the new matter is technically distinct.
Worked example
You acted for a company on a lease; it now sues your new client over an unrelated supply contract. Nothing from the lease is relevant, so the former-client rule is not engaged - but if the lease file revealed a negotiating strategy still in use, you must decline.
Rule of thumb: ask (1) whose loyalty is at risk, and (2) whose information is at risk. If either answer makes you uncomfortable, stop and get advice.