Document Type

Article

Publication Title

Fordham Law Review

Abstract

This lecture addresses the conflicts of interest that face lawyers in the ordinary practice of private law. The subject is one of intrinsic interest to all lawyers and economists who have an interest in the structure of law firms and law practice. More to the point, however, this subject has forcibly been brought to my attention in an autobiographical way. I regard myself as a full-time academic lawyer and as a part-time practitioner. One of the things that has always struck me in my limited practicing life is that, notwithstanding my initial ignorance of the legal rules that govern conflicts of interest, over the years I have been drawn into a succession of conflict-of-interest situations. I have been forced to turn down assignments that I dearly would have liked to undertake, to write detailed letters of explanation to past and present clients, and to obtain clearances and waivers from people after disclosure in order to participate in a case. The problem of conflicts of interest has not been coextensive with the nature of my legal practice, but it has been a major issue, if not a thorn in my side. In at least one case my legal work was the object of extensive litigation in which I was obliged to remain quiet in a deposition before (happily) a claim of work-product and attorney-client privilege was sustained. For reasons I shall discuss later, I suspect that my position is not unique. It is not possible for any lawyer in practice today to avoid the conflict-of-interest question. To get a conflict-of-interest question wrong may, from the perspective of the lawyer, be worse than losing a case for a client. Moreover, such errors could well expose the errant lawyer to a wide range of sanctions, including disqualification, forfeiture of fees, disciplinary proceedings, and perhaps in extreme cases even criminal sanctions. It is important, therefore, to understand what should be done at several levels to deal with this problem. First, it is necessary to ask the reason why the question of conflict of interest assumes any importance at all. Second, it is necessary to summarize briefly the rules that govern conflicts of interest. Third, it is necessary to ask how firms and lawyers should behave in response to conflict of interest. Finally, it is necessary to ask whether any reforms in the current law and practice of conflict of interest could improve the overall operation of the legal system. In this short lecture I shall try to survey some of the key issues that arise in this area.

First Page

579

Volume

60

Publication Date

1992

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