Most attorneys are aware that conflicts are not something to take lightly. After all, cautionary tales abound in the media, as many high-profile legal malpractice cases of late seem to be rooted in unresolved conflicts issues. However, conflicts are not as scary as they seem. By understanding the types of conflicts and, where possible, how to cure conflicts, attorneys can minimize their risks and ensure that they do not unnecessarily lose work every time there is a suggestion of a conflict.

The place to start in analyzing a conflicts issue is to identify the type of conflict. Potential conflicts generally come in two forms: simultaneous representations and successive representations.

Simultaneous Representation Conflicts

First, perhaps the most obvious type of conflict is a simultaneous or concurrent representation conflict, which arises out of the representation of two clients at the same time. Such conflicts can occur when representing more than one client in a matter, or simply when a firm obtains a new client whose interests are adverse or are potentially adverse to another current client.

The rules regarding simultaneous representations are strict. California courts hold that a simultaneous adversarial representation results in per se or “automatic” disqualification for the attorney “in all but a few instances.” M'Guinness v. Johnson, 243 Cal. App. 4th 602, 608, 196 Cal. Rptr. 3d 662, 666 (Cal. Ct. App. 2015) (citing Flatt v. Superior Court, 9 Cal. 4th 275, 283, 885 P.2d 950 (1994)). The reason for such a strict rule is because a concurrent representation of two clients with apparently opposing interests could call into question an attorney's loyalty to the client.

However, before declining a representation due to a simultaneous representation conflict, attorneys can review whether there is actually a conflict. This is of course a fact-intensive analysis and, in some cases, can be a very close call. However, where there is a potential simultaneous representation conflict, then attorneys will typically proceed with caution given the potential for automatic disqualification.

Successive Representation Conflicts

The second type of conflict occurs when there is a conflict between the representation of a former client and the representation of a current or prospective client. This type of conflict is often referred to as a “successive representation” conflict. In order to determine whether there is a potential conflict, California courts analyze whether there is a “substantial relationship” between the subjects of the antecedent and current representations. Flatt, 9 Cal. 4th 275, 283, 885 P.2d 950 (1994).

Successive representations generally do not have the same “automatic disqualification” rule in part because, unlike simultaneous representation conflicts, the primary concern is not the duty of loyalty because the relationship with one of the clients has already ended. Instead, however, there may be concerns regarding maintaining client confidentiality, as the attorney could use confidential information obtained in the prior representation to the detriment of the former client in the new representation.

Thus, when an attorney is asked to take on work that is adverse to the interests of a former client, the relevant inquiry is usually whether the information obtained during the representation of the former client can be used in the representation of the new client. If the attorney did not and could not have learned any confidences and secrets that could be used to the former client's detriment, then conflicts typically will not preclude the new representation.

Use Conflicts Systems Effectively

For many attorneys, the first indication of a potential conflict comes from their law firm's automated conflict check system. Computers have proven to be a great resource for checking conflicts, but they are only as accurate as the information inputted into the system. Thus, where attorneys fail to take the time to identify all potentially adverse parties in a matter, the conflicts system will be less than perfect.

In addition, a conflicts system is of little help if it is not used with regularity. Attorneys typically remember to run conflicts when a new matter comes in, but conflicts considerations might arise at other times during a representation. This can include, for example, when a new party becomes involved as a plaintiff, defendant, lender, buyer, or seller.

Addressing Conflicts With Clients

Just because a conflict comes up in the system does not mean that the representation will necessarily be precluded. There are situations in which the rules will permit a representation even where a potential conflict exists provided that the attorney makes appropriate disclosures and obtains the client's consent. However, some conflicts of interest are clearly not waivable, such as where a law firm attempts to represent both a plaintiff and a defendant in the same lawsuit.

Often, the most difficult decision for an attorney is how to handle client relationships when there is a potential conflict. Some clients may not react kindly to being approached with a request for a conflict waiver by their attorney. However, in today's world, most clients recognize that conflicts will occur and a conflict's existence does not signal a lack of dedication or loyalty from the attorney.

However, some client relationships can suffer even where the attorney determines that there is no legal conflict and thus no need to obtain a conflict waiver. This can occur, for example, where an attorney represents one of the client's main competitors, creating a potential business conflict (even if not a legal conflict). For that reason, attorneys can take a commonsense approach to conflicts and consider whether it may be appropriate to notify other clients of the new representation (subject to confidentiality obligations) and smooth over any concerns even in the absence of an actual conflict.

By combining a knowledge of the legal requirements with practical considerations, attorneys can help ensure that they don't get into hot water over conflicts issues.

Shari L. Klevens is a partner at Dentons US and serves on the firm's US Board of Directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons' global insurance sector team, and is co-author of “California Legal Malpractice Law” (2014). Alanna Clair is a partner at Dentons US and focuses on professional liability defense. Shari and Alanna are co-authors of “The Lawyer's Handbook: Ethics Compliance and Claim Avoidance.” This article was prepared with assistance from Craig Giometti, an associate at Dentons US.