[14] As a general rule, clients can accept representation independently of a conflict. However, as noted in subparagraph (b), some disputes are not able to give consent, which means that the lawyer concerned cannot properly request such an agreement or provide representation based on the client`s consent. If the lawyer represents more than one client, the question of capacity to consent must be clarified for each client. If the business is completely independent of each other, or if the history with each client does not indicate that a special relationship with a particular client would be particularly damaged, or if the client is experienced and understands how to protect their own interests, it may be reasonable to obtain each party`s consent to proceed with the representation. On the other hand, if the factors indicate that the conflict of interest would pose a risk to the lawyer`s relationship with his or her clients or affect the degree of due diligence of the representation for each client, it may not be reasonable to proceed with the representation. [10] This blog post on conflict of interest among lawyers is based on a chapter in the 2015 issue of Lawyers` Professional Responsibility in Colorado by attorney Michael T. Mihm, which discusses current conflict of interest law as it applies to Colorado lawyers. It is based on the Colorado Rules of Professional Conduct; the former Colorado Rules of Business Conduct, valid until December 31, 2007 (formerly Colorado Rules or formerly Colo. RPC); Colorado appeal decisions; ethical opinions; the ABA Model Rules for Ethics; the reformulation (third) of the Lawyers Act (recast); and other resources. If you believe you have a legal error against your attorney or law firm, whether in Colorado or any other state, contact Michael T. Mihm (720) 287-7039. [27] For example, conflict issues may arise in estate planning and estate administration.
A lawyer may be called in to prepare wills for multiple family members, such as husband and wife, and depending on the circumstances, there may be a conflict of interest. In the administration of the estate, the identity of the client may not be clear under the law of a particular jurisdiction. According to one view, the client is the trustee; From another perspective, the client is the estate or trust, including its beneficiaries. In order to comply with the conflict of interest rules, the lawyer should clearly indicate his or her relationship with the parties involved. After the end of a client relationship, the lawyer still has a permanent obligation to former clients. In particular, a lawyer must protect the confidential information he or she obtains in the course of representing a client, even after the end of active representation. [18] Therefore, a conflict between a current client and a previous client is governed by the same basic rule as conflicts of interest between current clients. If the duty to represent a client in a new case presents a significant risk that the representation will go against a former client, the lawyer must refuse to do so unless there is an appropriate declaration of consent from all parties.
[19] Reformulation § 121, pp. 244-45. The keywords and phrases here are “interests”, “significant risk” and “materially and negatively affected”. The analysis of conflicts of interest therefore involves taking into account (1) the interests at stake; 2. what constitutes a “significant risk”; and (3) what does “materially and negatively affected” mean in the circumstances? Reprocessing identifies four questions to ask when assessing a conflict of interest standard. These questions are: 1) What kind of effect is prohibited? 2) How important should this effect be? 3) What probability should there be that the effect will occur? and 4) From what point of view should conflicts of interest be identified? While a lawyer from a law firm is prohibited from representing a client due to a simultaneous conflict of interest or conflict of interest with a previous client, it is also prohibited for any lawyer in the firm to perform the representation. [29] Disputes are attributed to other lawyers in a law firm because of the common duty of loyalty and the duty to protect confidential information. [20] Paragraph (b) requires counsel to obtain the client`s written consent. Such a letter may consist of a document signed by the client or a document that the lawyer, after oral consent, immediately registers and transmits to the client. See Article 1.0(b).
See also Rule 1.0 (n) (Letter includes electronic transmission). If it is not possible to obtain or transmit the letter at the time the client gives consent, the lawyer must obtain or transmit it within a reasonable time thereafter. See Article 1.0(b). In most cases, the requirement for a written letter does not replace the need for the lawyer to speak to the client, to explain the risks and benefits, if any, of representation encumbered by a conflict of interest, as well as reasonably available alternatives, and to provide the client with a reasonable opportunity to consider the risks and alternatives and to ask questions and concerns. Rather, the letter is necessary to convey to the client the seriousness of the decision that the client must make and to avoid disputes or ambiguities that may arise later without a written letter. To mitigate this difficult outcome, many states allow the law firm to accept representation if the disqualified lawyer is prevented from participating in the case. The firm must inform the former client that a conflicting lawyer will not participate in a matter contrary to the interests of the former client, but that it does not have to obtain the consent of the former client. [36] The mechanism of verifying the lawyer in the conflict is sometimes referred to as the “ethical wall” or the “Great Wall of China” (after the Great Wall of China). In the event of a conflict of interest in the context of ongoing representation, the lawyer must comply with all applicable ethical obligations. If necessary, a new waiver of a conflict may be requested.
In the event that the parties are unable to resolve their disputes or a waiver is prohibited, a withdrawal is appropriate in a manner that does not affect the customer. [21] A client who has consented to a conflict may withdraw consent and, like any other client, terminate the lawyer`s representation at any time. Whether the withdrawal of consent to represent the client`s own rights prevents the lawyer from continuing to represent other clients depends on the circumstances, including the nature of the dispute, whether the client withdrew consent due to a material change in circumstances, the reasonable expectations of the other client, and whether there would be a significant disadvantage to other clients or the lawyer. [1] Loyalty and independent judgment are essential elements in a lawyer`s relationship with a client. Concurrent conflicts of interest may arise from the lawyer`s liability to another client, former client or third party, or from the lawyer`s own interests. For specific rules on certain simultaneous conflicts of interest, see Rule 1.8. For past conflicts of interest with clients, see Rule 1.9. For conflicts of interest involving potential clients, see Rule 1.18. Definitions of “informed consent” and “confirmed in writing”, see Rule 1.0, (e) and (b).
[13] A lawyer may be paid by a source other than the client, including a ceronic, if the client is informed of this fact and agrees and the agreement confirms the lawyer`s duty of loyalty or loyalty to the client. not weakened.