Conflicts 101: Identifying and Handling Conflicts

By combining a knowledge of the legal requirements with practical considerations, attorneys can help ensure that they don’t get into hot water over conflicts issues.

Most attorneys are aware that conflicts are not something to take lightly. After all, cautionary tales abound in the media, as many high-profile legal malpractice cases of late seem to be rooted in unresolved conflicts issues. However, conflicts are not as scary as they seem. By understanding the types of conflicts and, where possible, how to cure conflicts, attorneys can minimize their risks and ensure that they do not unnecessarily lose work every time there is a suggestion of a conflict.

The place to start in analyzing a conflicts issue is to identify the type of conflict. Potential conflicts generally come in two forms: simultaneous representations and successive representations.

First, perhaps the most obvious type of conflict is a simultaneous or concurrent representation conflict, which arises out of the representation of two clients at the same time. Such conflicts can occur when representing more than one client in a matter, or simply when a firm obtains a new client whose interests are adverse or are potentially adverse to another current client.

The rules regarding simultaneous representations are strict. California courts hold that a simultaneous adversarial representation results in per se or “automatic” disqualification for the attorney “in all but a few instances.” M’Guinness v. Johnson, 243 Cal. App. 4th 602, 608, 196 Cal. Rptr. 3d 662, 666 (Cal. Ct. App. 2015) (citing Flatt v. Superior Court, 9 Cal. 4th 275, 283, 885 P.2d 950 (1994)). The reason for such a strict rule is because a concurrent representation of two clients with apparently opposing interests could call into question an attorney’s loyalty to the client.

However, before declining a representation due to a simultaneous representation conflict, attorneys can review whether there is actually a conflict. This is of course a fact-intensive analysis and, in some cases, can be a very close call. However, where there is a potential simultaneous representation conflict, then attorneys will typically proceed with caution given the potential for automatic disqualification.

The second type of conflict occurs when there is a conflict between the representation of a former client and the representation of a current...