Ethically Speaking
| Publication year | 2011 |
| Pages | 32 |
Vol. 34, No. 1, 32. Ethically Speaking
Issue: February, 2011
Carl M. Williams Professor of Law and Ethics
University of Wyoming College of Law
Fifteen years ago, the February 1996 issue of the Wyoming Lawyer contained a new column entitled "Ethical Issues."(fn1) That column, now known as "Ethically Speaking," has appeared in 88 of the 90 issues of the Wyoming Lawyer which have been published beginning with the February 1996 issue. As each column contains about 4,000 words, the Wyoming State Bar has now published over 350,000 words about ethical issues since 1996, plus additional information or articles written by persons such as Becky Lewis. In addition, in 2008, the Bar published Professional Responsibility in Wyoming, a nearly 1,000 page treatise on legal ethics and other professional responsibility topics.(fn2) Altogether, all the columns and the book represent more than 650,000 words about professional responsibility. That evidences a remarkable commitment to educating Wyoming's lawyers about legal ethics.
When I began writing the column, I told my wife that there would be material for two or three years. Boy, was I wrong. Fifteen years later, the list of topics I maintain includes over 25 items. For every one that comes off the list, two or three are added. Now it seems clear that the ethical issues to be addressed will never be exhausted, at least until long after I tire of writing about them. As for now, neither the list nor I am exhausted, so here's to another fifteen years.
Conflicts of interest are a complex topic, requiring and deserving a much fuller treatment than can be given in this column.(fn3) This column, instead, will focus on two aspects of conflicts of interest. That is, how to properly obtain a waiver from a client (if the conflict is one that may be waived), and how and when the client may revoke that waiver.
Conflicts of interest can be classified in many ways. For purposes of this column, and subsequent columns, there are two important ways. First, by the timing of the conflict. Does it involve current clients, former columns, or former prospective clients? Second, by degree or severity of conflict.
The Rules of Professional Conduct ("the Rules") treat conflicts involving current clients, former clients, or former prospective clients differently. This column will address only those involving current clients. Those involving former or former prospective clients will be addressed in subsequent columns.
There are three degrees of conflicts. First, there are conflicts which are so serious they may not be waived. Second, there are conflicts that may be waived if the waiver is done properly. And third, there are de minimis conflicts. Conflicts, that is, which are so minor they do not even have to be disclosed to a client, let alone waived.
The distinction between the first two types, those conflicts that may be waived and those that may not, is outlined in the Rules; the third category, de minimis conflicts, is implicit in the Rules. Before discussing categories of conflicts, it is worth noting that conflicts involving current clients are referred to in the Rules as "concurrent conflict [s]."(fn4)
Concurrent conflicts come in two types. First, such a conflict exists if "the representation of one client will be directly adverse to another client."(fn5) Second, there is a concurrent conflict if "there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer."(fn6) As conflicts of interest involving former clients are treated very differently, it is important to know if a client is a current client or a former client.
Knowing whether a client is a current client or a former client should not be difficult, and it won't be if the lawyer follows a practice of using written engagement and closing letters.(fn7) Unfortunately, many lawyers do not, and without an express agreement, a lawyer-client relationship, which is contractual, "may be implied from the conduct of the parties . . (the lawyer and the client).(fn8 )The ultimate determination of whether there is a lawyer-client relationship depends on the reasonable expectations of the client. If such an expectation exists, there is a current lawyer-client relationship, regardless of what the lawyer believes. In any case, the burden is on the lawyer to clarify whether the client is a current one or a former one.(fn9 )That clarification should be done in writing.(fn10) If no clarification is made, the client may reasonably expect that a current lawyer-client relationship exists, and the lawyer will be held to the more stringent conflict of interest provisions of Rule 1.7.
After first prohibiting representation that involves a concurrent conflict of interest, the same Rule (Rule 1.7) permits the waiver of some conflicts. Rule 1.7(b) sets out four criteria that must be met before a conflict may be waived (each of the criteria is discussed below). First, the lawyer "reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client."(fn11) Second, "the representation is not prohibited by law."(fn12 )Third, "the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal."(fn13) Finally, "before proceeding with the representation, each affected client makes an informed decision to waive the conflict, in writing signed by the client."(fn14)
The requirement that a lawyer must "reasonably believe[] that the lawyer will be able to provide competent and diligent representation to each affected client" involves defined terms and incorporates two other Rules. Both the words "believe" and "reasonably" are defined, and the phrase "reasonably believes" is defined, too. First the word "believe" is defined as primarily subjective. "Believe" means that "the person involved actually supposed the fact in question to be true."(fn15) The definition is not, however, totally subjective. "A person's belief may be inferred from the circumstances."(fn16) The objective part of the definition means that a person may not close his or her eyes to the obvious.(fn17) "Reasonably," by contrast, is objective. "[W]hen used in relation to conduct by a lawyer, [reasonably] denotes the conduct of a reasonably prudent and...
To continue reading
Request your trial