The Importance of Informed Written Consent to Conflicts of Interest
Where conflicts of interest exist, a lawyer may not engage in certain types of conduct without making proper disclosures and obtaining the client’s informed written consent. Last week, we examined what it means to give informed written consent. Today, we’ll look a little more closely at what the lawyer cannot do unless proper consent is obtained.
Unless a lawyer obtains proper, informed written consent from a client, the lawyer may not:
- Represent a client in any matter in which the client’s interest is directly adverse to another of the lawyer’s clients that is involved in the same matter.
- Represent a client in any matter (or any substantially related matter) in which the client’s interests are materially adverse to those of a former client
- Represent a client where there is a significant risk that the lawyer’s work will be limited by responsibilities the lawyer owes to any existing or former client or other third party, or by the lawyer’s own interests.
- Represent a client in a matter (or a substantially related matter) if either the lawyer or the lawyer’s current or former law firm represented a client with interests that were materially adverse to the current client, and where the lawyer acquired protected or confidential information about the former client that is material to the current matter.
- Represent a client in any matter in which the lawyer participated, personally and substantially, while serving as a public official, government employee, or as a judge, judicial staff member, law clerk, arbitrator, mediator, or other neutral adjudicant.
- Enter into a joint or aggregate settlement of claims, or plea agreement, impacting or on behalf of two or more clients.
- Agree to accept financial compensation from someone other than the client in return for representing the client (except where this type of compensation is authorized by law or court order, or where the lawyer is representing the client as part of the lawyer’s work for a legal aid or other public legal services entity).
Please note: this is not a complete or comprehensive list of the things lawyers cannot do without obtaining proper informed consent. Requirements apply to many other types of actual and potential conflicts of interest, and those requirements may be similar to, or different from, a simple informed consent.
If your lawyer has, or had, a conflict of interest, and you think the situation was not handled in a proper, open, and legal manner, consult an experienced lawyer immediately for an evaluation of the situation and to discuss your legal rights. Failure to handle conflicts of interest properly may qualify as legal malpractice (professional negligence), and in some circumstances, current and former clients may have claims against an attorney who fails to comply with the legal and ethical rules that govern lawyers’ behavior.
Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
You may lose or compromise your rights if you delay in consulting legal counsel. Most legal claims (and defenses), as well as legal and court procedures, are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other legal claim, consult an experienced lawyer immediately for an evaluation of your individual rights and claims.