Conflicts of interest are not common in personal injury cases but could arise in some situations. There are several types of conflicts of interest, including:
- Conflicts when representing current clients who have adverse interests
- Conflicts arising from duties owed to former clients
- Conflicts related to past employment with another law firm
- Conflicts relating to employment as a neutral third party, such as a mediator or arbitrator
- Conflicts because of the attorney’s personal interests
According to Adam Zayed, an experienced personal injury lawyer in Chicago, before you hire a personal injury lawyer to handle your case, the attorney should perform a conflict check. Attorney Zayed explained, “All law firms should have a procedure for ensuring they do not have a conflict of interest with a potential client”.
Therefore, the attorney might ask you for detailed information about the current case and all past lawsuits. Detailed information helps the law firm ensure it does not have an interest that could hurt your case.
What Is a Conflict of Interest?
According to the Model Rules of Professional Conduct, essential elements of an attorney-client relationship are independent judgment and loyalty. An attorney has a legal duty to do what is in the client’s best interest. A conflict of interest arises when the interests of another party or the attorney are adverse to the current client.
The Model Rules require an attorney to:
- Clearly identify their clients
- Determine if a conflict exists
- Decide if the attorney can represent the clients despite the conflict
- Consult the clients, explain the conflict, and obtain informed written consent before proceeding to represent both clients
Some conflicts might not be adverse. Therefore, the clients can consent to the attorney representing both clients or hire another lawyer.
However, some conflicts would not be resolved via consent.
For example, suppose a driver and a passenger want to hire a law firm for a car accident case to sue the other motorist who caused the crash. If, during the investigation, the lawyer determined the client driving the vehicle could be partially at fault for the crash, the passenger could have a claim against both drivers.
A conflict of interest exists because the lawyer cannot represent the best interests of both parties. The best interest of the driver would be to fight all claims that they contributed to the cause of the accident. However, the best interest of the passenger may be to file personal injury claims against both drivers.
Potential Consequences of a Conflict of Interest in a Personal Injury Case
It is unethical for a lawyer to represent clients with opposing interests without obtaining informed consent. A conflict of interest might not be illegal, but it could lead to allegations of legal negligence.
Legal malpractice occurs when a lawyer breaches the duty of care to the client, and the client suffers harm because of the lawyer’s conduct. A client would need to prove that the lawyer had an interest that was adverse to the client’s best interest.
Then, the client must prove that the conflict was the direct and proximate cause of harm. If successful, the client could receive compensation for damages caused by the conflict of interest.
Identifying Conflicts of Interest in Personal Injury Law
A law firm that solely represents injured parties or plaintiffs might not have a high risk of conflicts of interest. However, firms that represent both sides must be vigilant. For example, representing insurance companies and personal injury clients is a red flag that conflicts of interest might arise.
Tracking clients over a long career or within a large law firm can be difficult. No lawyer will remember every client they represented over 20 or 30 years. Therefore, documentation and conflict resolution tools are essential for avoiding conflicts of interest.
It is reasonable to ask a lawyer to provide the details of their conflict checks. If an attorney cannot explain how they avoid conflicts, it could indicate the attorney might not be the right attorney to handle your case.