Professionalism and Conflicts of Interest: Emerging Issues

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.

Learning Objectives:

1. Identify conflicts and how they arise
2. Explain the ethics rules and their underlying concepts and policies
3. Analyze how the ethics rule are approached by litigants and courts and the exceptions or alternatives that may apply
4. Explore possible solutions and new approaches