A lawyer must be diligent and zealous in his representation of his clients. Anything that could make the lawyer anything less than zealous and dedicated could be considered a conflict of interest and should not be undertaken. If a lawyer represents a client but has a conflict of interest, the lawyer may be subject to a claim for legal malpractice.
Legal malpractice cases are complicated and difficult to prove. To win a legal malpractice case, you must prove a case within a case - that the outcome would have been different if your lawyer had not been negligent.
A common cause of legal malpractice is a conflict of interest, which occurs when a lawyer cannot fulfill his duties to multiple clients at the same time. A conflict of interest is a violation of a lawyer’s professional ethical duties and, in some instances, may constitute legal malpractice.
What Is a Conflict of Interest?
A conflict of interest occurs when an attorney has duties to more than one client but cannot adequately serve the interests of both. Lawyers have a professional obligation to avoid conflicts of interest. If a lawyer represents a client knowing that there is a conflict of interest, the lawyer may be subject to discipline by the Ohio State Bar Association or the Ohio Supreme Court and, in some cases, may be sued for legal malpractice. Even if the clients’ legal interests are not directly adverse, there is still a conflict of interest if there is a significant risk that the lawyer’s ability to recommend or carry out a particular course of action will be limited.
Examples of Attorney Conflict of Interest
A conflict of interest can occur if a prospective client has a legal position that is adverse to a lawyer’s current or former client, or if the potential client’s interests are in conflict with the lawyer’s personal or professional relationships. For example, if a client wishes to sue a business that is owned by the lawyer’s brother-in-law, there is a conflict of interest and the lawyer should decline representation.
Conflict of interest can arise if a lawyer seeks to represent both parties to a divorce, multiple parties in a personal injury case, multiple partners in a new business venture, the buyer and seller in a real estate transaction, or is writing wills for a husband and wife in a second marriage. A conflict of interest can also arise if the lawyer acts as the attorney for a business and at the same time is an officer, director, or shareholder.
Conflict of interest can also occur at the law firm level if a lawyer within the firm represented a client whose interests are in conflict with the interests of another client.
What Is Legal Malpractice?
Legal malpractice occurs when a lawyer fails to do what a reasonably prudent lawyer would do in similar circumstances. Lawyers, just like doctors and other professionals, are required to adhere to a professional standard of care. If a lawyer falls below that standard (i.e. is negligent) and the lawyer’s negligence harms his client, the lawyer can be liable for legal malpractice and the lawyer’s client may be able to recover money from the lawyer’s legal malpractice insurance carrier.
Legal malpractice cases are complex and require proving a case within a case. To prove legal malpractice, you must be able to prove that you had an attorney-client relationship, that the lawyer breached his duty to provide competent legal representation, and that the lawyer’s failure caused a financial loss.
An attorney cannot ensure a particular outcome, but if an attorney made a decision that a reasonably prudent attorney would not have made in a particular situation, there may be actionable malpractice.
To prove legal malpractice, you must be able to show that if the lawyer had not been negligent or otherwise acted improperly you would have been successful in the underlying case.
When Is a Conflict of Interest Legal Malpractice?
A conflict of interest arises when a lawyer’s loyalty is divided between multiple clients, between the lawyer and his client, or when a law firm places its interests above those of its client. These conflicts of interest can lead to legal malpractice when the lawyer recommends a course of action that damages his client.
What Is the Difference Between a Legal Ethics Violation and Legal Malpractice?
Facts that suggest a violation of a lawyer’s ethical duties or professional responsibility to his client do not necessarily mean that legal malpractice has occurred. A lawyer could violate professional ethical standards by representing multiple clients with conflicting interests, but if the clients did not suffer any financial damages there would be no malpractice. The lawyer would have committed a professional ethics violation, but would not be liable for malpractice.
Client Consent to a Conflict of Interest
In most cases a client can consent to representation even though there is a conflict of interest. To do so, each client who is affected must be made aware of the conflict of interest and the ways in which it could adversely affect the client’s interests. Consent to the conflict of interest must be obtained in writing.
Conflict of Interest in Criminal Cases
Conflict of interest can occur in a criminal case if a lawyer represents someone who has been accused of a crime and previously represented someone who will serve as a witness for the prosecution. The lawyer might possess confidential information that was acquired during his representation of the former client who is now testifying as a witness against the current client. The lawyer would have a difficult time cross-examining the former client because he possesses confidential information that was acquired during his representation of the first client.
Conflicts of interest are common in large criminal defense firms and public defenders’ offices where one lawyer’s knowledge of a client’s case is imputed to all lawyers in the firm.
Tom Robenalt started his litigation career at a large firm in Cleveland where he represented lawyers who were being sued for legal malpractice. For the past 25 years, he has used that experience to help legal malpractice victims and their families secure compensation.
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