Conflicts.

• Author: Hampton, Carter L.

This article originally appeared in the June 2009 Professional Liability Committee Newsletter.

The one word answer for why the firm made the headlines in the newspaper today. Yes, the most severe legal malpractice settlements and verdicts all come from conflict claims. Visualize the sting of seeing "Breach of Fiduciary Duty" and "Punitive Damage" when reading the demand letter or pleadings.

While it's true that conflicts are a complicated matter particularly in larger firms with thousands of clients, keep this short newsletter as a referral primer when a thought or concern arises. Remember the top ten causes of conflict problems and know the rules.

There are six primary Model Rules of Professional Conduct that govern most conflict situations as well as your own state code of professional conduct on rules to which lawyers should be familiar. These rules should be reviewed every time a conflict disclosure or waiver is prepared. Such time should be accounted for and may or may not be billed. Why do it and account for the time you ask? Draw near and I will tell you a horrifying tale.

Imagine you are in court defending the spurious claim, because it will not occur during your deposition. Plaintiff's counsel has discovered all your time records prior to trial and now comes to the close of your direct examination. He finishes something like this. "Counselor prior to asking your ex-client to sign this conflicts waiver (better yet if there is no writing) did you have an occasion to refer to the State Rules of Professional Conduct on Conflicts?" Whether this line of questioning goes forward or not, the damage is done. Follow-up "Counselor prior to asking your ex-client to sign this conflict waiver did you review the case law in this great state, the court decisions concerning conflicts?" Again, the damage is done.

Plaintiff's counsel gleaned from your time records that you had not spent any time so she knew the answer or was prepared to impeach the answer. If your review had been time entered you would be defending the real facts.

The second thing to refer back to in this newsletter is the top ten problem areas and why, which came from real legal malpractice suits and claims.

10. Representing Multiple Plaintiffs One is one. Two or more is never one. Always follow the one client one lawyer rule. We are all granted the same rights not the same results.

9. Representing multiple defendants-who is the client? Is the client the board, president, shareholders...