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Attorneys must avoid conflict of interest for ex-clients too

A person who hires an attorney for help with a legal matter has the right to expect that the lawyer taking his or her case does not have a conflict of interest. We spoke about conflict of interest on Sept. 9. It is a form of legal malpractice in which the offending attorney represents clients whose interests oppose each other for some reason. Think of an attorney representing opposite sides in a contract negotiation.

Your lawyer’s duty to avoid conflicts with your interests does not necessarily end once your legal matter is resolved. Under the American Bar Association’s model rules of professional responsibility, which form the basis for many states’ rules, attorneys must be careful not to take clients that would create a conflict of interest with many former clients.

Under the model rule, a lawyer who once represented Client A in a particular matter cannot thereafter represent Client B in the same or “substantially related” matter, if Client B’s interests in the matter are materially adverse to those of Client A.

Conflict of interest can follow attorneys even when they did not personally handle a client’s case. The ABA rule also prohibits attorneys from taking a client’s case if that case is the same or substantially related matter that a law firm the attorney used to work for previously handled a conflicting client.

One way out of this conflict is if the attorney obtains written permission from the former client to represent the would-be new client. However, former clients should be careful before signing such a document, because doing so could harm their own interests.