Teaching Conflicts of Interest

ARTICLES

Teaching Conflicts of Interest

EMILY HUGHES*

ABSTRACT

Analyzing conflicts of interest is a critical part of the daily life of a law-

yer, although the urgency and complexity of conflicts are difficult to teach

in a meaningful way. After teaching conflicts to law students enrolled in

Professional Responsibility courses and discussing conflicts with lawyers in

ethics presentations, the author has developed a method for teaching con-

flicts of interest that is accessible and (hopefully) memorable. This Article

presents that method. By using an evolving fact pattern as the analytical

lens for studying conflicts, students learn how conflicts emerge, converge,

and diverge as facts develop. Beginning with a personal injury accident

that causes a married couple to seek legal advice, the narrative progresses

through predictable—and unpredictable—turns. As the narrative evolves,

so do the conflicts. By learning conflicts through a focused and evolving

lens, law students better understand the complexity of conflicts of interest

analysis.

TABLE OF CONTENTS

I. SETTING THE SCENE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

* Emily Hughes, Associate Dean for Academic Affairs, Professor and Bouma Fellow in Law, University of

Iowa College of Law. Many thanks to the following individuals: Dean Margaret Raymond, University of

Wisconsin Law School, whose Professional Responsibility course continues to serve as the inspiration for my

own teaching, and who taught me more about professional responsibility than I ever imagined possible when

she invited me to co-author the second edition of her casebook, THE LAW AND ETHICS OF LAW PRACTICE (West

Academic Publishing 2015); Professor Mae Quinn for providing a moral compass, constructive feedback, and

inspiration throughout the project; Dean Kevin Washburn at the University of Iowa College of Law for his gen-

erous support and feedback; lawyer and librarian Amy Koopmann for her excellent research assistance; more

than five hundred law students over the duration of at least eight Professional Responsibility courses who

helped to refine and improve this project; and to my excellent research assistants for their stellar support: Paul

Esker, Jacob Bennington, Joshua Crow, Kimberly Cullen, Madison Gurley, Vannessa Larson, and Amber

Maloney. I am also grateful to Professors Jennifer Hendricks, Luz Herrera, Irene Joe, Patricia Lee, Mae Quinn,

and Leticia Saucedo for attending the 2018 Women’s Writing Retreat, where I first drafted the ideas presented

here. © 2021, Emily Hughes.

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II. CAN LAWYER REPRESENT BOTH PROSPECTIVE CLIENTS?. . . . 3

III. PITFALLS OF JOINT REPRESENTATION . . . . . . . . . . . . . . . . . . . 5

A. DIVERGENT CURRENT CLIENT INTERESTS . . . . . . . . . . . . 6

1. WHEN THINGS FALL APART . . . . . . . . . . . . . . . . . . . . . . . 7

2. FORMER CLIENT WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . 9

3. FORMER CLIENT REFUSES TO WAIVE CONFLICT . . . . . . . . . . 11

B. CLIENTS SEEK NEW COUNSEL . . . . . . . . . . . . . . . . . . . . . 12

IV. LAWYER MOBILITY AND FORMER CLIENTS . . . . . . . . . . . . . . . 14

A. YOUNG ASSOCIATE HAS CONFIDENTIAL INFORMATION

MATERIAL TO THE MATTER . . . . . . . . . . . . . . . . . . . . . . . 14

B. YOUNG ASSOCIATE DOES NOT HAVE CONFIDENTIAL

INFORMATION MATERIAL TO THE MATTER. . . . . . . . . . . 15

V. PERSONAL INTEREST CONFLICTS . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

I. SETTING THE SCENE

Picture this: Ellie surprises her husband, Carl, with the gift of a hot air balloon

ride for their second anniversary. The balloon operator, Ballo, is a doctor by day

and a balloon enthusiast by night. Ballo has enjoyed taking friends into the sky

for years, eventually turning the hobby into a part-time business called Cielo.

The business offers short hot air balloon rides on weekends and some evenings.

Ballo runs the business alone. On a gorgeous April evening, with picnic dinner in

hand, up into the air they go. After a romantic champagne toast at 1,000 feet,

Ballo starts the balloon’s descent. All goes well until the last 40 feet, when a sud-

denly strong gust of air pushes the balloon dangerously close to a tall tree. Ballo

maneuvers away from the tree, but not before the basket knocks against a large,

outlying branch. The collision tips the basket to its side and, before the basket

rights itself, Carl falls overboard with Ellie, who loses her footing trying to pre-

vent Carl from falling. Luckily, some ground-level bushes brace their fall. Ballo

calls 911, lands the balloon, and races to help Carl and Ellie until the ambulance

arrives. Although Carl and Ellie escape without severe injuries, Carl’s diagnosis

includes prolonged back pain. Three months later, surrounded by mounting hos-

pital bills and constant pain, Carl and Ellie consult a lawyer—hereinafter

“Lawyer”—about suing Ballo and Cielo for personal injuries and emotional dis-

tress damages.

2 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:1