[ LAW ]
Conflicts of Interest
BY ALEX CHAZEN
In 2019, the State Bar of California rewrote its rules about Conflicts of Interest. We are currently in the process of bringing a
new partner into our firm, and I was doing some research about the new rules in order to make sure we remained compliant
when this attorney left their current firm to join ours. In doing so, I read quite a bit about what the conflict rules actually
mean, and found that they could just as easily apply to any relationship – personal, business, or legal – as they could to attorneys
that are trying to determine whether they can take on a new client.
California Bus. & Prof. Code sets out
the overarching rule for attorney conflicts:
“It is the duty of an attorney to…
maintain inviolate the confidence, and at
every peril to himself or herself to preserve
the secrets, of his or her client.”
Essentially, at their root meaning, the
rules prevent an attorney from using
information that was gained in representing
a client against that same client.
But the rules also seek to prevent even
the appearance of a breach of something
more amorphous – a duty of loyalty to
that client.
The example is often given that the
only reason to breach the confidence of
a client is if it will prevent a crime that is
likely to result in death of or substantial
bodily harm to someone. Note that it is
not permissible to breach the confidence
to prevent any crime – there needs to be
higher stakes. More often, the issue arises
when an attorney’s old firm represented a
client, and that attorney, while never working
on the file, seems to have a conflict of
interest in pressing forward with a lawsuit
against the client of their former firm. This
is not an actual conflict, but the appearance
of a conflict can be just as hurtful to a client
as an actual conflict.
I don’t like turning away clients, but I
am necessarily much more concerned with
keeping the clients I already have happy. If
I know that I can take a case where I don’t
actually have a conflict, but where one
of my current clients will think that I am
breaching their trust by handling the case,
I’m turning down that case every time.
California law agrees with my decision.
Similarly, when I look at the actions
of others, I’m often not bothered by
them until the behavior that I deem
objectionable is being undertaken by
one of my friends or family members.
Sure, disliking lawyers is all well
and good for 57% of the population,
but when my good friend says that,
it becomes shocking. Where it gets
even thornier is when one of my
friends constantly reminds me that
they disagree with something they
know that I stand for. For those now
asking whether those people are truly
your friends, you clearly don’t spend
much time on social media, where by
having the ability to post (and repost)
some are able to feel like they have law
degrees, medical degrees, and in the
case of our example, astrophysicist
degrees. These people will post vile
lies, and just because it’s someone
else’s words, or the subtext to a pretty
picture, they think that the meaningfulness
of it coming from a friend is
stripped away.
I’ve written several times before
about the advice I was given in law
school about waiting to hit send on an
email until you would feel comfortable
handwriting the same note and putting
it in the mail to the intended recipient.
But if 2020 has taught me anything thus
far, it is that we should also think about
our friends and family members, those
who are vulnerable, and those who we
don’t have an actual conflict with before
we take action that will create a perceived
conflict. After all, eventually the
stream of new clients and friends will
end, and then who are you stuck with?
BY VITALII VODOLAZSKYI_SHUTTERSTOCK
20 BAY WINDOW