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Conflict of Interest

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Definition:

A conflict of interest occurs when a lawyer, law firm or organization’s private interests conflict with their public or fiduciary obligations.

In the legal profession, the Code of Professional Responsibility and ABA Model Rules of Professional Conduct set forth standards for actual or potential conflicts of interest between attorney and client. These rules prohibit an attorney or law firm from representing any other party with interests adverse to those of a current client.

To waive a conflict, the ABA Model Rules require that the client consent to the lawyer’s representation after full disclosure and consultation. The client must be able to appreciate the situation and have enough information to make a reasonable decision as to whether or not the lawyer can provide fair representation. The consent of the client must also be entirely voluntary and not given under pressure, by the lawyer or anyone else. Certain conflicts are non-waivable. For example, the same law firm cannot represent both parties in a divorce case.

Examples:

  • Simultaneous representation of two clients who are adversaries in the same case (such as the husband and wife in a child custody case).
  • Successive representation in which an attorney represents a client in a matter which may be adverse to that of a former client (such as representing the husband in a divorce case and the wife in a subsequent child custody case).
  • A judge who decides a case in which he has a personal stake or interest (such as deciding a zoning case that affects land the judge owns).

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