Causation Concepts and Conflicts of Interest

Article excerpt

Recognizing that a wide range of practical and helpful material appears in the newsletters prepared by committees of the International Association of Defense Counsel, this department highlights interesting topics covered in recent newsletters and presents excerpts from them.

Causation Concepts and Conflicts of Interest

Writing in the March 2001 newsletter Of the Professional Errors and Omissions Committee, Debra A. Winiarski of the professional liability department of D'Ancona & Pflaum, Chicago, issues a warning about jurors:

Defense counsel need to be aware of the animosity jurors may instinctively feel toward a lawyer alleged to have committed an "ethics" violation. This feeling will be played on heavily by the plaintiff's counsel and needs to be diffused. One of the ways to accomplish this is to gain an understanding of the place of the ethics rules in legal malpractice cases and the peculiar alteration of general legal malpractice principles that some courts have imposed in these types of cases. Armed with this knowledge and an understanding of the context in which this case law has developed, counsel will be in a position to attempt to convince the court to provide evidentiary rulings and jury instructions that do not unfairly prejudice the defendant.

Conflicts of interest

Lawyers are presented with conflict of interest issues essentially every time they contemplate representing a new client or an existing client on a new matter. There are two broad categories of conflicts that can arise-first, conflicts that arise by reason of representation of another client ("client conflicts"), and, second, those that arise between the client and the personal or business interests of the lawyer ("adverse interest conflicts").

As to client conflicts, while the rules vary from jurisdiction to jurisdiction, Rule 1.7 of the American Bar Association Model Rules of Professional Conduct generally provides that representation of a client cannot be undertaken if the representation is adverse to an existing client, without consent after full disclosure. Nor, under Rule 1.9, can representation be undertaken if it is adverse to a former client in the same or substantially related matter, unless the former client consents after disclosure.

As to adverse interest conflicts, Rule 1.8 generally prohibits lawyers from entering into a business transaction with a client, unless the client has consented after full disclosure, if the lawyer knows that he or she may have a conflicting interest with the client with respect to the transaction, or the client expects the lawyer to exercise the lawyer's professional judgment for the protection of the client. Rule 1.8 also prohibits specific transactions, including, among others, testamentary gifts, financial assistance to clients, settlement of claims against the lawyer by clients, and the acquisition of various business interests.

Huge headaches

While these might seem to be rather clear directives, conflicts questions pose huge headaches for many lawyers, especially in this age of intricate corporate interrelationships, the large size and multijurisdictional breadth of some law firms, as well as the increased movement of lawyers from firm to firm. Then, too, the rules themselves also are a source of confusion. For example, while they allow a representation adverse to a former client in the same or substantially related matter if there is consent after full disclosure, it is difficult to imagine circumstances in which a lawyer could undertake such a representation without fear of later being held to have violated the rule. Either the current or former client could allege lack of full disclosure and a prejudicial compromise of the relationship if the client is dissatisfied with the outcome of the representation.

Finally, while filled with admirable general goals, the conflict rules provide little in the way of specific guidance as to what a lawyer should do in any given situation. …