Dealing with Conflicts

Conflicts of interest have become more acute and more complex with the growth of law firms, the globalization and increase in concentration of many industries and a no-holds-barred approach to litigation. The consequences of a conflict can be severe: loss of clients and damage to reputation, loss of fees, exposure to sanctions and even malpractice liability. Some conflicts arise from causes such as a misunderstanding of the rules or sloppiness in conflict checks. Some derive from work done by lateral hires, perhaps many years in the past, or may be imputed to a firm from the conduct of co-counsel or consultants.

The ethics rules in the United States are stricter than in many other parts of the world and mean that conflicts may arise for completely unrelated matters where it is unlikely that any serious harm, breach of confidence or lack of loyalty exists. Even these minor or more technical conflicts may have serious consequences for both lawyer and counsel, however.

In addition to understanding the basic conflicts rules and their permutations and exceptions, it is important to understand the possible methods for avoiding or dealing with them as well as the approaches the courts may take to them. Many factors and interests may be considered in the litigation setting; these include the importance of client choice of counsel, distaste for litigants seeking unfair tactical advantage, timing, public perception and the fairness and efficiency of trials.

This program will discuss both the basic ethics and professional responsibility rules and the approaches to conflicts taken by outside and corporate counsel in engagement letters and client guidelines as well as resolutions reached in recent court decisions.

1. Identify conflicts and the problems they present

2. Explain the ethics rules and underlying concepts and policies

3. Analyze how the ethics rules apply and the exceptions or alternatives to them

4. Explore possible solutions and alternative approaches