A conflict of interest occurs when a person would harm the interests of one party with whom they are associated by working for the interests of another party with whom they are also associated. In the family law context, this typically regards situations where a firm or attorney has represented in the past, or currently represents, a party or individual whose interest is in direct conflict with a current or potential client.
Why is a Conflict of Interest Problematic?
Every person who hires an attorney is entitled to have “conflict-free counsel,” meaning they should be able to hire an attorney or firm that will represent that client’s best interests – and only that client’s best interests – with respect to that client’s case. If you hire an attorney for a divorce, and the attorney previously represented your soon-to-be-ex in another matter, that would create a conflict of interest. Or you may hire an attorney for a custody matter and then discover that the attorney knows your ex and the children personally from school or through sports. The attorney now has a conflict of interest. This is because that fact or relationship may influence the decisions they make in a case to avoid problems with that outside relationship. Any conflict or potential conflict should be disclosed to the client.
How Can I Identify and Avoid Conflicts of Interest?
Conflicts of interest can cause problems for both clients and law firms. Attorneys and firms have an obligation to be compliant with ethics rules. The State Bar of California issues Rules of Professional Responsibility, which are adopted by the Supreme Court of California. These rules specifically identify when a conflict exists and what should be done to potentially avoid conflicts of interest.
It is important to be upfront with any attorney you meet with as to who the other party in your case is (or will be). You should provide, for example, your spouse’s name, ex-spouse or ex-partner’s name, place of employment of all parties, and where the children go to school; these are some key pieces of information the attorney will want to know so they can screen for a conflict of interest. Many times an intake questionnaire will be filled out or discussed during the initial consultation in order to identify any potential conflicts.
Take time to do some research into your attorney or the firm you are seeking to hire; a conflict would exist if they formerly represented your ex or if they have any financial interest in your ex’s place of employment or residence. Overall, these conflicts of interest are not too common in large metropolitan areas. They are more likely to occur in smaller areas or where an attorney handles multiple practice areas, as these factors increase the likelihood that they previously represented someone else involved in the case or that they have some sort of relationship with that person or entity.
Can I Waive a Conflict?
There are some exceptions or waivers allowed but only with the consent of all parties involved. Once the risks of the conflict are fully explained, and all parties are informed, the conflict may be waived so long as the consent was freely and voluntarily made. If additional risks arise, that waiver must be updated. Lawyers may not represent a client whose interests are materially adverse to a former client. The key is to be sure that you consult with an experienced attorney to assist you with your family law case, one who is thorough in their consultation so as to avoid any unexpected or foreseeable conflicts of interest.