What is a conflict of interest?
The number one reason we turn prospective clients away is due to conflict of interest. And the clear majority of those clients ask us “what do you mean?” when we tell them why we can’t represent them.
On top of all of federal and state laws, attorneys are required to follow a lengthy code of professional ethical rules. The rules are very important and ensure that lawyers competently represent their clients with the highest degree of integrity. Two of the most important rules are maintaining loyalty and confidentiality with each client. That is why lawyers need to diligently ensure that these duties don't conflict with any current, past, or prospective clients.
So what are some examples of ethical conflicts?
The most clear-cut conflict is if an attorney has one client who is a codefendant with another. It would be impossible to vigorously represent one person who is pointing a finger at his codefendant if you represent them both. While there are rare circumstances in which an attorney could represent two codefendants, no lawyer is ever required to do so. Most reputable defense attorneys, myself included, will refuse to represent codefendants under such circumstances because the risk of developing a conflict of interest is very high.
A related type of conflict is when an attorney represents a victim, witness, or potential witness in a criminal case. This often comes up in drug cases, where many possible witnesses are named by the State and an attorney may be faced with the prospect of cross-examining someone he or she has represented. The rule applies to current and former clients, and is focused on maintaining our duty of confidentiality. In other words, if an attorney thinks that he or she is in danger of revealing confidential information learned in another client’s case in order to effectively represent a current client, it’s a conflict. Since the rule applies even if the attorney doesn’t remember a case or if once-confidential information about the witness is now public, seeing a current or former client on a witness list is normally an automatic conflict of interest. The role of the witness and the likelihood that the witness will need to be attacked on the stand are issues that an experienced defense attorney can consider. Sometimes a witness will not constitute a conflict simply because the attorney has represented him before.
This rule applies to prospective clients that we have consulted that did not end up hiring us if we received confidential information during the consultation. So for example, if I take a call and interview a codefendant in a drug or robbery case, and that person decides not to hire me, I am barred from representing that person’s codefendant if he or she calls me later on.
The rule also extends to cases in which the appearance of a conflict of interest is readily apparent. In particular, this means that attorneys are barred from representing clients if another lawyer in his or her firm would have a conflict of interest. That’s not so much of an issue for a solo practitioner like me, but can create major problems for large practices, including the public defender’s office, which has to follow this rule. This rule is a major cause of the backlog for appointing public defenders for many of the people waiting on an attorney.
What about personal conflicts?
The conflict of interest rule also requires attorneys to turn down cases if they believe that a personal relationship or belief would interfere with their ability to effectively represent the client. So, generally speaking, it’s a bad idea to represent family members, or people who the attorney has a social relationship that could be impacted by how a case is handled. Some attorneys invoke ideological beliefs to refuse to represent in certain types of cases. I’ve seen some attorneys do this when the allegations interfere with their personal beliefs.
What’s a time conflict?
Time conflicts are another common reason why we have to turn down cases. Some cases are scheduled under circumstances where it would be impossible to effectively represent the client, either because a hearing or trial is scheduled when I am unavailable, or the case is scheduled under circumstances where it would be impossible to effectively prepare for it in time.
What about professional competency?
Closely related is the rule that an attorney should refuse to accept a case if he or she believes they are not capable of providing competent representation. “Competence” is the minimal threshold. Even if I think I can handle a case at the basic level of professional competency, I will turn down cases when I don’t believe I can represent a client at a high level. That’s the reason why I specialize in criminal defense and refuse to handle cases outside of my scope of practice – it’s awfully difficult to maintain a high degree of proficiency in more than one specialty. I’ll occasionally get calls where I’m generally qualified to handle a case, but believe that a client is better represented by a sub-specialist, and will occasionally refer out certain types of specialized or complex types of cases for that reason.
So what’s frustrating for clients about conflict of interest cases?
First, we aren’t allowed to tell clients why we believe there is a conflict. The clients are left to wonder if there is a snitch in their case, or who could be the cause of the problem. I try to reassure prospective clients when I’m able, but sometimes all that I’m allowed to say is that the case is a conflict.
Second, there are a limited number of lawyers in the La Crosse area that regularly handle criminal defense. It can be difficult to get a meeting with a lawyer you can trust and is financially affordable. Sometimes a loved one will go weeks without an attorney due to the limited number of local lawyers available. Hearing that the lawyer has a conflict starts the search process all over again.
What happens when I have a conflict of interest?
The first thing I do during any consultation is ask about potential victims, witnesses, and other parties involved in a case to make sure there aren’t any conflicts. Whenever it becomes apparent that a case will be a conflict I’ll politely explain the situation and ask the prospective client not to share anything more about his or her case. I have a list of highly-qualified attorneys that I share with the clients I am unable to represent. I only refer cases to attorneys that I know personally, and would recommend to my own family or friends. Any notes from these meetings are destroyed, and we strictly abide by the rules of confidentiality, which prohibit us from ever mentioning the meeting, or what we discussed.
We take confidentiality very seriously and I will never discuss the fact that a conflict case came to meet with me. While conflicts of interest can be frustrating, the rule exists for a very good reason and we do our best to refer clients who are conflicted out of our practice to excellent attorneys capable of handling their case.