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Advances in Social Sciences Research Journal – Vol. 9, No. 11
Publication Date: November 25, 2022
DOI:10.14738/assrj.911.13386. Hunter, R. J., & Shannon, J. H. (2022). Avoiding Common Conflicts of Interest in the Lawyer-Client Relationship. Advances in Social
Sciences Research Journal, 9(11). 119-131.
Services for Science and Education – United Kingdom
Avoiding Common Conflicts of Interest in the Lawyer-Client
Relationship
Richard J. Hunter
Professor of Legal Studies, Stillman School of Business,
Seton Hall University, Adjunct Professor of Law
University of Tulsa College of Law
John H. Shannon
Professor of Legal Studies, Stillman School of Business
Seton Hall University
ABSTRACT
There are several areas in the law where conflicts of interest commonly occur in the
context of the lawyer-client relationship. This article, which is Part II of a three-part
series on issues relating to the lawyer-client relationship, will explain two of the
main conflicts that may occur: simultaneous representation of clients with differing
or conflicting interests and personal conflicts of interest between a lawyer and a
client. In addition, the paper will discuss the special considerations inherent in
contingent fee arrangements.
Key Words: conflict of interest; informed consent; fiduciary duty; transactional conflicts;
contingency fee arrangements
INTRODUCTION
A conflict of interest in the legal context is defined as a conflict between professional duties and
private interests, or a conflict that arises between the duty to one client and another client (see
Hughes, 2021). The Disciplinary Board of the Supreme Court of Pennsylvania (2021) provides
a context to this discussion, writing:
“In the nature of law practice, however, conflicting responsibilities are encountered.
Virtually all difficult ethical problems arise from conflict between a lawyer's
responsibilities to clients, to the legal system and to the lawyer's own interest in
remaining an ethical person while earning a satisfactory living. The Rules of
Professional Conduct often prescribe terms for resolving such conflicts. Within the
framework of these Rules, however, many difficult issues of professional discretion
can arise. Such issues must be resolved through the exercise of sensitive professional
and moral judgment guided by the basic principles underlying the Rules. These
principles include the lawyer's obligation zealously to protect and pursue a client's
legitimate interests, within the bounds of the law, while maintaining a professional,
courteous and civil attitude toward all persons involved in the legal system.”
At the outset of this study, it is important to come to a common understanding of terms which
will be critical to explicate various conflicts of interest (see New York City Bar Association,
2022).
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Advances in Social Sciences Research Journal (ASSRJ) Vol. 9, Issue 11, November-2022
Services for Science and Education – United Kingdom
Rule 1.0 of the American Bar Association Model Rules of Professional Conduct (2020) defines
various terms used in the relevant Rules 1.7 and 1.8 dealing with lawyer-client conflicts of
interest as follows:
• Confirmed in Writing
“Confirmed in writing” denotes (i) a writing from the person to the lawyer confirming that the
person has given consent, (ii) a writing that the lawyer promptly transmits to the person
confirming the person’s oral consent, or (iii) a statement by the person made on the record of
any proceeding before a tribunal. If it is not feasible to obtain or transmit the writing at the time
the person gives oral consent, then the lawyer must obtain or transmit it within a reasonable
time thereafter. (Rule 1.0(e)
• Differing Interests
“Differing interests" includes every interest that will adversely affect either the judgment or the
loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse, or other interest.
(Rule 1.0(f)
• Reasonable or Reasonably
“Reasonable” or “reasonably,” when used in relation to conduct by a lawyer, denotes the
conduct of a reasonably prudent and competent lawyer. When used in the context of conflict of
interest determinations, "reasonable lawyer" denotes a lawyer acting from the perspective of a
reasonably prudent and competent lawyer who is personally disinterested in commencing or
continuing the representation. (Rule 1.0(q)
• Reasonable Belief
“Reasonable belief” or “reasonably believes,” when used in reference to a lawyer, denotes that
the lawyer believes the matter in question and that the circumstances are such that the belief
is reasonable. (Rule 1.0(r)
The Official Comments of the Pennsylvania Disciplinary Board (2021) relating to “lawyer
competence” may shed some light as to determining “reasonable belief” on the part of an
attorney:
“In determining whether a lawyer employs the requisite knowledge and skill in a
particular matter, relevant factors include the relative complexity and specialized
nature of the matter, the lawyer’s general experience, the lawyer’s training and
experience in the field in question, the preparation and study the lawyer is able to
give the matter and whether it is feasible to refer the matter to, or associate or
consult with, a lawyer of established competence in the field in question. In many
instances, the required proficiency is that of a general practitioner. Expertise in a
particular field of law may be required in some circumstances.”
• Informed Consent (see Minaya v. United States, 2022)
“Informed consent” denotes the agreement by a person to a proposed course of conduct after
the lawyer has communicated information adequate for the person to make an informed
decision, and after the lawyer has adequately explained to the person the material risks of the
proposed course of conduct and reasonably available alternatives. (Rule 1.0(e)
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Hunter, R. J., & Shannon, J. H. (2022). Avoiding Common Conflicts of Interest in the Lawyer-Client Relationship. Advances in Social Sciences Research
Journal, 9(11). 119-131.
URL: http://dx.doi.org/10.14738/assrj.911.13386
Little (2011) explained:
“The lawyer should reasonably ensure that the client receives enough information
to make an informed decision; this will vary depending on the circumstances. In
general, this will require communication that includes a disclosure of how the
situation arose (facts and circumstances); a discussion of how to proceed; the
advantages and risks of the suggested course; and an explanation of other available
choices.... One of the more significant attributes of this new informed consent is the
requirement for an affirmative response by the client. The lawyer should not
assume consent where the client remains silent.”
There are several areas in the law where conflicts of interest commonly occur in the context of
the lawyer-client relationship. This article, which is Part II of a three-part series on the lawyer- client relationship, will explain two of the main conflicts that may occur: simultaneous
representation of clients with differing or conflicting interests and personal conflicts of interest
between a lawyer and a client.
REPRESENTING CLIENTS WITH DIFFERING INTERESTS SIMULTANEOUSLY
Concerning those cases where there is “direct adversity among concurrent clients,” Mihm
(2016) writes: “The most apparent conflict of interest problems are, seemingly, conflicts in
which the interests of concurrent clients are directly adverse. In fact, it is not always obvious
when clients have directly adverse interests, particularly in litigation.” In these circumstances,
a lawyer is almost always prohibited from representing parties whose interests are directly
adverse. Mihm (2016) continues: “Each client has an ‘institutional interest’ in vigorous
development of his or her position when aligned directly against each other in the same
matter.”
The basis of the discussion of simultaneous representation may be found in Rule 1.7 of the
American Bar Association’s Model Rules of Professional Conduct (2020), which deals with
conflicts of interest relating to current clients (see Carter v. Genesis Alkali, LLC, 2022). Rule 1.7
states:
(a) Except as provided in paragraph
(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially
limited by the lawyer's responsibilities to another client, a former client or a third person or by
a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a
lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and
diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another
client represented by the lawyer in the same litigation or other proceeding before a tribunal;
and
(4) each affected client gives informed consent, confirmed in writing.”