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Legal representation: Can a conflict of interest be waived?

Any person in California or elsewhere who retains an attorney for representation in a legal matter has a clear and compelling expectation that his or her lawyer will render counsel that is not undermined in any manner by a conflict of interest.

Indeed, a conflict issue can go to the very heart of a lawyer’s representation. As noted in an online primer on legal conflict of interest issues, a client’s view — whether founded or not — that an attorney is not exercising truly professional judgment can damage both “existing lawyer-client relationships and perceptions of the legal system itself.”

That overview additionally notes with dismay “how many lawyers play ostrich when it comes to conflicts, simply ignoring potential problems.”

For myriad and obvious reasons, they shouldn’t do that, given the wide universe of lawyer/client conflict possibilities. Centrally, that realm encompasses attorney conduct like the following:

  • Representing two parties with adverse interests in the same matter
  • Having personal interests in your client’s matter that antithetical to the client’s best interests
  • Helping a client in a matter that is substantially related to one in which a former client was represented, with the current client’s interests being adverse
  • Suing a current client in another matter

Given what the above-cited primer terms the “infinite variety of situations” in which conflicts can appear, this question regarding conflicts seems germane and well posed: Can a conflict be waived so that an attorney can provide legal representation in a given case?

The answer is that, yes, a conflict can be waived in some instances (such as the third bullet point above, with representation generally being permissible if the former client consents to it).

The problem that often occurs is that lawyers sometimes err in their decisions regarding conflicts and waivers by underestimating the damage of a conflict and proceeding with representation that can ultimately be construed by legal authorities as unethical and illegal.

A conflict of interest can shatter a client’s reasonable expectations regarding legal assistance and result in great personal harm.

Competent attorneys acting in good faith do not undermine their clients by representing them if conflicts that detract from full professionalism exist. If they do, and harm results, they can be held accountable in litigation.

A proven legal malpractice attorney can answer questions and help malpractice victims explore options that fully promote their best interests.