The ABA Model Rules of Professional Conduct 1.7 through 1.11 govern avoiding conflicts of interest.
Rule 1.7(a) says a lawyer can’t represent a particular client if doing so would involve a conflict of interest stemming from the lawyer’s responsibilities to someone else – whether another client, a former client, or a personal interest. In addition, a lawyer cannot represent two clients with directly adverse interests. (There are some exceptions.)
Rule 1.9(b) says a lawyer can’t knowingly represent a person in a matter if the lawyer, or the lawyer’s firm or former firm, previously represented a client with adverse interests, and/or about whom the lawyer had acquired material confidential information, unless he or she has the former client’s consent to do so.
Do these rules apply equally to paralegals and other legal support staff?
Model Rule 5.3 requires a lawyer to assure that his or her employee’s conduct is not in violation of the professional conduct rules. Further, law firms have been disqualified from representing a client due to a conflict of interest on the part of paralegals. See e.g., Richards v. Jain, 168 F. Supp. 2d 1195 (W.D. Wa. 2001).
What’s more, the National Federation of Paralegal Associations’ Model Code of Ethics 1.6 states, “a paralegal shall avoid conflicts of interest and shall disclose any possible conflict to the employer or client, as well as to the prospective employers or clients.”
What is it really about?
What, at base, are these conflict of interest rules really designed to guard against?
Divided loyalty. Conflict of interest rules are designed to protect a client from situations in which an attorney – or a law office employee – has a divided loyalty and therefore cannot represent him wholeheartedly. Divided loyalty might stem from representing a party on the other side of a conflict, from previously having represented a party on the other side of a conflict, or from having some personal interest in a matter which could conflict with the client’s interests.
Confidentiality. Conflict of interest rules are designed to protect a client from having her confidential and/or privileged information disclosed, because a legal professional who has been privy to her confidences in the past now represents another party who could benefit from learning that information, to her detriment. This is why an attorney, or a paralegal or other staff member, may not assist a client who is a party to an action opposite a former client.
Compromise. Conflict of interest rules are designed to protect clients from having their best interests compromised by the actions of their lawyer or former lawyer – or by their lawyer’s paralegal or staff.
What can we do about it?
Here are some guidelines.
- Does your firm send out those pesky conflict check emails? Read them! I mean, really read them! If you see a party or name you recognize from previous cases or employment, follow the instructions in the email for notifying your firm of your potential conflict.
- Maintain a list of all your past cases, including all parties or clients, from your past and current employment. This list will come in handy when you aren’t sure about a name you see in a conflict check email. It will come in doubly handy should you seek new employment and need to check for any conflicts regarding your new employer’s clients.
- Has any sort of ethical wall been put in place due to some client or case you had in the past? Take it seriously. Abide by its terms. Do whatever it takes to shield yourself from knowledge of your employer’s current representation, and to assure you have no opportunity to disclose any confidential information to those working on that matter.
- Develop habits that prevent you from talking about your attorney’s clients with anyone not directly involved in that client’s case. Ever. Anywhere.