The Duty to Clear Conflicts – Ethics Series, Part 3

The Duty to Clear Conflicts – Ethics Series, Part 3-0

The Duty to Clear Conflicts – Ethics Series, Part 3

Written by Desiree Nordstrom.

Overflow Legal Network has found that one of the first concerns that arise when law firms engage OLN freelance attorneys is in regards to potential conflicts of interest. The American Bar Association (ABA) Model Rules of Professional Conduct (MRPC) 1.7 and 1.8 require conflicts be cleared by attorneys before and during representation of a client. MRPC 1.7 states in part:

(a)[] … a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Several bar associations in the United States have addressed the topics unique to outsourcing legal work.[1] Most of these opinions deal with law firms using a legal process outsourcing (LPO) company with employees outside of the US. Although not exactly on point, law firms still can apply the guidance on conflicts of interest from these opinions in their relationships with contractual attorneys who are licensed inside of the US.

In its published opinion, the Association of the Bar of the City of New York Commission on Professional & Judicial Ethics required firms to maintain contemporaneous records of prior engagements and have a system set up to check potential conflicts against current and prior engagements. [2] This same opinion concludes that ultimately, the hiring lawyer is responsible for any conflicts which may arise through engaging a contractual attorney. [3]

Law firms must remember their ethical requirement to clear conflicts of interest when engaging the services of any contractual attorney. This should be done prior to commencing work on a project.

Contractual attorneys and firms always should maintain accurate record of their conflicts and compare this list during the onset of the contractual relationship. Once the project is underway, for conflicts purposes, the firm’s client becomes the contractual attorney’s client and should be added to the contractual attorney’s conflicts list for future reference.

Law firms should share only specific case information with contractual attorneys for which those attorneys have been hired to work. And at the same time, contractual attorneys should make great effort to view only information from and work only on the case or cases for which they were hired. Otherwise, contract attorneys risk having the firm’s conflicts imputed to them.

Under ABA Formal Opinion No. 88-356, it explains that firm conflicts are imputed to contract attorneys when they are “deemed associated” with a law firm. To be “deemed associated” with a firm, you must look at the relationship between the contractual attorney and the firm. Does the attorney have access to client lists? Does the attorney have access to case information outside of the client’s case to which he or she is assigned? Ultimately, it depends on the accessibility to confidential client information and the closeness of the relationship between the contractual attorney and the law firm.

As always, individual States have their own specific rules of conduct that vary slightly. Law firms and contractual attorneys always should follow the rules of their respective jurisdictions.

To read more articles in our Ethics Series, click here, here, here, here, and here.



[1] This includes, but is not limited to, the Florida Bar Opinion 07-2 (2008); the Los Angeles County Bar Association, Opinion 518 (2006); and the Association of the Bar of the City of New York Commission on Professional & Judicial Ethics, Formal Opinion 2006-3 (2006).

[2] The Association of the Bar of the City of New York Commission on Professional & Judicial Ethics, Formal Opinion 2006-3 (2006) (http://www.nycbar.org/index.php/ethics/ethics-opinions-local/2006-opinions/807-outsourcing-legal-support-services-overseas.10)

[3] Id.

 

3 Comments


Would you like to share your thoughts?

Your email address will not be published. Required fields are marked *

Leave a Reply

© Overflow Legal Network LLC. All Rights Reserved.