Restating the Law of Lawyer Conflicts

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Conflicts of interest is a subject that has dramatically increased in importance to practicing lawyers. Indeed, it is now one of the most litigated areas of professional responsibility, where the remedies for a lawyer's failure to avoid impermissible conflicts go beyond professional discipline to include disqualification, fee forfeiture and lawsuits for breach of fiduciary duty. This article analyzes the law of lawyer conflicts in the context of a largely favorable review of the conflicts chapter of the American Law Institute's Restatement (Third) of the Law Governing Lawyers.

Noting that a restatement's objectives are to clarify the law, help resolve contested cases, and serve as an educational reference tool, the article applauds the extent to which the conflicts chapter achieves its objectives by: underscoring the legal status of modern lawyer codes, demonstrating how conflicts rules are derived from both the agency and fiduciary law, and emphasizing the frequent availability of remedies other than lawyer discipline. In addition, the author explains how the actual presentation of the doctrine is far superior to either the Model Code or the Model Rules. The remainder of the article addresses the substance of the doctrine itself, covering topics such as: identification of potentially impermissible conflicts; determination whether a conflict is "non-consentable"; clarification of the relationship between Rule 1.7 (the general conflicts rule) and other rules, such as Rules 1.8(a) and 2.2; and resolution of ambiguities involving positional conflicts and affiliated organizations. It concludes with an analysis of such highly contested issues as the extension of screening of former client conflicts and payment and direction of a lawyer by a third-party such as an insurance company.

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