Conflicts are a big issue for lawyers, and a significant issue in the world of legal ethics. (If you are a lawyer and do not already have his site bookmarked, you really need to add Bill Freivogel’s website to your list of bookmarks.)
Relatively speaking, however, conflicts of interest (other than ones involving inappropriate sexual relationships) tend to be aired out through disqualification motions or as components of legal malpractice or breach of fiduciary duty lawsuits against lawyers and law firms much more often than in disciplinary proceedings.
To some extent, this phenomenon can be explained because lawyers tend to see the obvious conflicts and avoid them and only the more nuanced ones tend to be really problematic. For example, sometimes it can be difficult to explain the intricacies of what makes up a “substantially related” matter for purposes of evaluating a former client conflict situation under RPC 1.9. There are a number of other factors, of course, that lead to conflicts matters being a small percentage of disciplinary proceedings.
Sometimes, though lawyers do get disciplined for undertaking representations in violation of the conflict of interest rules. Earlier this year, the Tennessee Supreme Court suspended a lawyer for six months (after previously giving the lawyer a public censure involving the same conflict of interest) for stubbornly persisting with a representation that was prohibited by a conflict of interest.
Yesterday, the Ohio Supreme Court issued a public reprimand against a lawyer who took on a conflict that should have been really, really hard to miss. The lawyer represented a bank in a foreclosure action against a husband and wife and obtained a default judgment for the bank. Within nine months of doing so, the lawyer then undertook to represent the same husband and wife in seeking to vacate the same default judgment he helped the bank obtain. The lawyer had not obtained consent from the bank to do this. Fortunately for the lawyer, he had no prior disciplinary history and did the right thing in the disciplinary proceedings by admitting the wrongful nature of the conduct. As a result, he managed to get out of the disciplinary venue with only a public reprimand.
Lawyers though are not the only people that should see a conflict of interest but simply plow ahead with doing what they want to do. Although the ethics lawyer component of my law practice is overwhelmingly focused on legal ethics, I have had some experience in matters involving conflicts of interest of government officials/public employees. Here are links to a couple of news stories broadcast this week in Memphis about what appeared to be a pretty straightforward conflict problem that the government official should have recognized. The first broadcast can be viewed here. Fortunately, as the second broadcast indicates, the investigative journalism of the reporter appears to have brought an end to the conflict and, hopefully, will bring some much needed assistance to the economically-challenged residents that were being adversely affected by its repercussions.
(As a bonus, if you manage to watch either of the two broadcast segments, you’ll have a voice in your head (for better or worse) you can tie to the text on this blog.)