The growth of law firms, globalization, and increases in concentration in many industries, coupled with the sometimes unfortunate prevalence of a no-holds-barred approach to litigation in recent years, means that potential conflicts of interest have become more common and their consequences for lawyer and clients more acute. The conflict rules in the United States are stricter than in many other parts of the world; in virtually all US. jurisdictions conflicts may arise from work for clients on completely unrelated matters or may be imputed to a lawyer or law firm from the work of others in the past or while at other firms, sometimes in circumstances where it is unlikely that any serious harm, breach of confidence or lack of diligent representation is likely to occur. New conflict issues of uncertain scope, sometimes referred to as positional or issue conflicts are also beginning to emerge.
Some conflicts may be unavoidable for the lawyers with successful practices and a limited universe of major clients, either because of their geographic location or the specialized nature of their practice. But many conflicts arise from a misunderstanding of the applicable rules or sloppiness in conflict checks. Some derive from work done by lateral hires, perhaps many years in the past, or maybe imputed to a firm from the work of co-counsel or consultants. The ramifications can sometimes be extreme: loss of clients and damage to reputation; loss of fees; and exposure to sanctions and even malpractice or other liability.
This program, building on Part 1 of this two part series, will focus on newly emerging developments and some special conflict situations, as well as examining the approaches taken by outside counsel and corporate counsel in engagement letters and client guidelines, and the practical and policy issues they raise.
JAMES B. KOBAK, JR. is Senior Ethics Counsel and formers General Counsel at Hughes Hubbard & Reed LLP where he formerly chaired its Practice Standards, Procedures and Ethics Committee and Antitrust Practice Group.
He is a member of the ABA Center for Professional Responsibility, the Ethics Institute and Ethics Committee of the New York County Lawyers Association, the Committee on Standards of Attorney Conduct of the New York State Bar Association, the Professional Discipline Committee of the New York City Bar Association and the Association of Professional Responsibility Lawyers. Mr. Kobak is a past president of the New York County Lawyers Association. Mr. Kobak serves as one of two editorial advisors to the New York ethics treatise published by Oxford University Press , was a former member of the editorial advisory board of Law 360 Legal Ethics. He was a founder ofNYCLA's American Inn of Court and was awarded NYCLA's Boris Kostelanetz President's Medal in 2006.
Mr. Kobak is a graduate of Harvard College and the University of Virginia Law School where he was the Associate Editor of the Law Review. Mr. Kobak served as lead counsel to the SIPA Trustee for the liquidations of Lehman Brothers Inc. and MF Global, Inc. He taught seminars on antitrust/intellectual property issues for over a decade at Fordham and University of Virginia Law Schools and served as editor of the ABA Antitrust Sections' publication Intellectual Property Misuse: Licensing and Litigation.
Elizabeth Zhou is an associate in the New York office of Hughes Hubbard & Reed LLP and a member of the firm’s Arbitration practice. Ms. Zhou represents private and government clients in transnational and complex commercial litigation, arbitration, and enforcement. She has experience with the financial services, media technology, and life science technology industries, among others.