By Vicki Voisin, ACP
American Bar Association (ABA) Model Rules 1.7 through 1.10 address conflicts of interest. A conflict of interest refers to a situation where someone, such as an attorneyor public official, has competing professional or personal obligations or personal or financial interests, that would make it difficult to fulfill his duties fairly.
Generally, a conflict would include a relationship with the client or previous involvement with the client’s business. The existence of a conflict may result in the disqualification of the attorney and the firm. For this reason, conflicts of interest must be identified and avoided.
Since paralegals are subject to the same ethics rules as attorneys, conflict situations may also apply to paralegals. For this reason…
You might have a conflict if…you are working on a case where a close relative is on the other side. ‘Close relatives’ include parents, children, siblings, spouses and sometimes grandparents. Some states include friends, roommates and significant others. For instance, if your Aunt Sally is suing your firm’s client, Anytown Construction, you may have a conflict.
You might have a conflict if…you have information about the client on the opposite side of the case. For instance, prior to your current employment you worked at a firm that represented John Doe in his divorce from Jane Doe. Now, in your current employment, your firm’s client, Anytown Construction, wants to sue John Doe’s building supply company. You may know nothing about the new case but you have a great deal of information about Mr. Doe’s business from your previous employment, thereby putting him at a disadvantage. You may have a conflict.
You might have a conflict if…you want to enter into a business relationship with a client. For example, you decide to purchase an interest in Anytown Construction. You may have a conflict. In this situation, the client must give written consent, the transaction must be fair and the client should be advised to seek independent counsel. This rule covers taking an interest in a client’s business in lieu of fees.
You might have a conflict if…your client decides to make you the beneficiary of his estate. General ethics princip les indicate that paralegals would not accept such a gift but you may still receive the inheritance IF the client seeks independent counsel and you have absolutely nothing to do with the drafting or signing of the documents. You must take every possible step to avoid any appearance of impropriety. Note: The general rule is that a paralegal would refuse anything but a token gift from a client.
You might have a conflict if…you are changing jobs and the new firm represents a client who is on the opposite side of a case you worked on at your old firm. To avoid disqualification, your new employer may (1) decline to hire you; (2) request your former employer consent to your hiring; and (3) establish a screen that will prevent you from access to the client’s file and any involvement in the case at your new firm.
Your challenge: First, as always, review the ethics rules in your jurisdiction and learn to recognize conflicts. I have just scratched the surface here. When you believe a conflict exists, inform your employer immediately. The attorney will then decide how to handle the matter. Attorneys are prohibited from representing clients when there is a conflict unless the attorney reasonably believes the representation will not affect either party adversely and each party consents. The consent should be in writing. It is possible that you will also need to be screened from work on the case. If you and your employer take the appropriate steps, the conflict can be avoided and there will be no adverse effect on the client or the firm.
© 2009 Vicki Voisin, Inc.
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