The Conflicted Attorney
| Publication year | 1982 |
| Pages | 2589 |
1982, October, Pg. 2589. The Conflicted Attorney
One of the most important commodities an attorney has to sell to his client is his independent professional judgment. This commodity loses its value when an attorney accepts employment from clients with conflicting interests. In such cases, the attorney not only risks disciplinary proceedings,(fn1) motions for disqualification and withdrawal(fn2) and loss of compensation,(fn3) but also risks becoming a defendant in an action for legal malpractice.(fn4)
The Code of Professional Responsibility directs an attorney to exercise his independent professional judgment on behalf of the client. DR5-105 proscribes employment which may interfere with the lawyer's independent professional judgment on behalf of another client. EC5-14 explains that the problem arises whenever a lawyer is asked to represent clients "who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant."(fn5) The Supreme Court of Colorado noted that DR5-105 was intended to guarantee the independence of an attorney from conflicting interests of clients in order to preserve the integrity of his adversarial role.(fn6)
Attorneys are not always prohibited from representing multiple clients. DR5-105(C) provides:
[A] lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.(fn7)
CBA Formal Ethics Opinion No. 57 emphasizes that an attorney must fully disclose to his clients potential conflicts that may arise no matter how remote the conflicts may be. It is essential that each client be given the opportunity to evaluate the need for representation free from potential conflict. An attorney should explain any possible circumstances that might cause a client to question his loyalty and should resolve all doubts against the propriety of representation.(fn8) It is important to understand that the decisions condemning acceptance of employment adverse to a client are based on the client's loss of confidence, not the attorney's inner conflicts.(fn9)
In representing multiple clients, an attorney should be careful not to violate other canons of the Code. Canon 4 states that a lawyer should preserve the confidences and secrets of his client.(fn10) Courts have recognized that an attorney should not accept employment from others in matters adversely affecting an interest of a present client with respect to which confidence has been reposed.(fn11) In addition, Canon 7's directive to represent clients zealously, and Canon 9's prohibition against the appearance of professional impropriety must be kept in mind.(fn12)
Representing both buyers and sellers in the same transaction places an attorney in a position which, by its very nature, makes it very difficult to conform to required standards of practice in protecting clients' interests.(fn13) CBA Formal Ethics Opinion No. 57 referred to the 1978 New Jersey Supreme Court case of In re Dolan as a case dealing with the propriety of representing both buyers and sellers.(fn14) Dolan was a disciplinary case involving an attorney who represented a mortgage company in sales involving permanent mortgages used in the purchase of townhouses. In these same transactions the attorney acted on behalf of both the purchaser-mortgagors and the sellers.
The attorney did not meet most of his clients until the time of closing. At this time, purchasers were notified for the first time that a potential conflict of interest might arise out of the attorney's...
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