Conflict of Interest Check

[STEPHAN]

What is common practice? If I ask a lawyer if he can represent my company and he finds out that he has a conflict of interests (has represented that company before) does he share that with his client?

 

[quincy]

What is common practice? If I ask a lawyer if he can represent my company and he finds out that he has a conflict of interests (has represented that company before) does he share that with his client?

Yes. Any conflict of interest that an attorney has must be shared with his client/prospective client.

 

[quincy]

Here is a link to the ABA’s Model Rules of Professional Conduct, see Rule 1.7 et seq, Conflict of Interest:

https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rules_of_professional_conduct_table_of_contents/

A state’s local rules may vary slightly from the model rules.

 

[zddoodah]

If I ask a lawyer if he can represent my company and he finds out that he has a conflict of interests (has represented that company before) does he share that with his client?

If a lawyer cannot undertake to represent a potential client because of a conflict of interest, the lawyer will typically tell the client that.

 

[PayrollHRGuy]

I think the OP is asking that if there is such a conflict would the lawyer be bound or blocked from telling the company there was legal action on the way.

 

[quincy]

It is possible that an attorney can represent a client even if a possible conflict of interest exists, if the client (and any other interested party), once informed of the conflict, agree (in writing) with the attorney that the conflict should not interfere with his representation.

 

[quincy]

You are in Florida, right? Here is a link to Florida’s Rules of Professional Conduct with Comments (all 167 pages of them ):

https://www-media.floridabar.org/uploads/2019/09/Ch-4-from-2020_03-SEP-RRTFB-9-19-19-3.pdf

 

[doucar]

I believe that telling the potential client that there is a conflict of interest is all that is required, he doesn't have to go into detail what the conflict is if that is what you are asking.

 

[cbg]

This is the way I am reading the question:

If Aaron asks Attorney Jones to represent him in suing Company ABC, and Attorney Jones has to decline because he represents ABC in another matter, Attorney Jones will tell Aaron only, "I'm sorry, I have a conflict of interest" but will he then turn around and tell Company ABC that he's been asked to represent Aaron in a conflicting matter and a potential lawsuit is on the way?

 

[Litigator22]

I believe that telling the potential client that there is a conflict of interest is all that is required, he doesn't have to go into detail what the conflict is if that is what you are asking.

Not only is there an absence of need for the attorney to particularize why it would be unethical to undertake the proposed representation, doing so might in itself be unethical.

 

[zddoodah]

I think the OP is asking that if there is such a conflict would the lawyer be bound or blocked from telling the company there was legal action on the way.

That seems to be very different from the OP's question about "common practice." However, if that was what the OP intended, the answer would depend on the state where it occurred. As far as "common practice" in such a scenario, I doubt very much that any sort of survey has been done on this.

 

[quincy]

Not only is there an absence of need for the attorney to particularize why it would be unethical to undertake the proposed representation, doing so might in itself be unethical.

Going into details with a prospective client about a conflict of interest that does (or could) exist with an existing client (e.g., identifying the other party) could indeed be a violation of attorney/client privilege.

 

[STEPHAN]

If Aaron asks Attorney Jones to represent him in suing Company ABC, and Attorney Jones has to decline because he represents ABC in another matter, Attorney Jones will tell Aaron only, "I'm sorry, I have a conflict of interest" but will he then turn around and tell Company ABC that he's been asked to represent Aaron in a conflicting matter and a potential lawsuit is on the way?

I apologize for being unclear. Thank you cbg, you got what I would like to know.

 

[quincy]

"I'm sorry, I have a conflict of interest" but will he then turn around and tell Company ABC that he's been asked to represent Aaron in a conflicting matter and a potential lawsuit is on the way?

I apologize for being unclear. Thank you cbg, you got what I would like to know.

To answer cbg’s question, No. The attorney should not say anything to his current client about a prospective client or vice versa. The attorney’s communications with both the current client and the prospective client are privileged.

The time an attorney potentially could disclose a conflict of interest to a client/prospective client is when the conflict does not involve and could not compromise the legal actions of either.

You can read both the Rules and Comments on “conflict of interest” posted earlier and you can also read the section on “informed consent” (page 6 of the Florida Rules).

 

[cbg]

Well, technically, cbg was not asking the question, only clarifying what the question was.