The duty of loyalty to a client is of paramount importance to the attorney-client relationship. Prior to entering into an attorney-client relationship, a lawyer must examine and determine whether a conflict of interest exists that undermines the duty of loyalty. For the first 21 years of my legal career, I practiced in Chicago and its surrounding suburbs. While conflict checks were performed as a matter of course, there were rarely conflict issues. Relocating my practice to a more rural area highlighted the need for a solid conflict-checking procedure. This is especially true because the “everybody knows everybody” perception that creates coziness in a small town can also create conundrums for attorneys as potential conflicts are explored.
AUTHORITY FOR LAWYER DISQUALIFICATION
Michigan Rules of Professional Conduct 1.7 through 1.12 govern attorneys as they analyze potential conflicts of interest and disqualification. The focus here is on rules governing representation of adversarial interests of current clients, former clients, and a lawyer’s personal interests as these conflict issues most often come into play for small-town attorneys. MRPC 1.7 sets forth the general rule covering current clients as well as when a lawyer’s duties to a third party or the lawyer’s own interests may create a conflict. MRPC 1.9 covers former clients, including instances when an attorney changes firms. Specifically:
- MRPC 1.7(a): A lawyer cannot represent a client if the representation will be “directly adverse” to another client. The comments to MRPC 1.7 explain this rule is not meant to prohibit representation when the interests are merely generally adverse.1 Moreover, a possible conflict does not preclude representation. The critical question is the likelihood that a conflict will eventually occur.2
- MRPC 1.7(b): A lawyer cannot provide representation if such representation will be “materially limited” by the lawyer’s own interests or responsibilities to another client or third party. Representation in these instances is permitted if the lawyer believes such representation will not adversely affect the relationship and each client consents after consultation.
- MRPC 1.9(a): A lawyer who formerly represented a client in a matter cannot represent a new client in the same or substantially related matter if the new client’s interests are materially adverse to the former client unless the former client consents after consultation.
- MRPC 1.9(b): A lawyer cannot knowingly represent a person in the same or substantially related matter “in which the firm with which the lawyer formerly was associated has previously represented a client” if the interests are materially adverse and the lawyer acquired confidential information.
While rural areas have excellent and experienced legal counsel, there are definitely not as many attorneys in small communities as there are in large metropolitan areas. So, when a firm or attorney is disqualified, where is the potential client to go for proper legal representation? Attorneys cannot overlook the rules to ensure clients have representation. The same conflict rules that apply in Wayne County also apply in Emmet County. Sometimes clients must travel to other counties to find an attorney. There is a well-known story among attorneys of one particularly litigious person who had filed so many lawsuits that the parties had to travel more than 60 miles north to locate attorneys able to provide representation.
Most attorneys in rural areas — whether solo practitioners or multi-attorney practices — handle more than one area of law. My current firm has attorneys who handle estate planning and administration, family law litigation, transactional work in real estate and business, probate litigation, and criminal defense. My associate is a public defender, and most of us take court appointments from juvenile and probate court. We carefully check conflicts to make sure, for example, that the defendant/client in a criminal appointment is not the opposing party in a custody case. We also must be sure that advocating for our clients does not conflict with outside business interests, as we serve on various boards and have spouses with business interests that could be affected by certain representations. There’s no question it is a careful balancing act, but we have found that we can ensure our clients have our undivided loyalty by checking for existing conflicts (we use Clio) and discussing our concerns if we think there might be a conflicting third-party or personal interest.
Routine conflict checks often require a more in-depth analysis to determine if it is possible to resolve by disclosure and consent. Other times, analysis determines that the perceived conflict does not require disqualifying the attorney. For example, a potential client having a strong dislike for an existing client, while perhaps uncomfortable, does not create a conflict since their interests are not directly or materially adverse.3
SAMPLE SCENARIOS RURAL AND SMALL-TOWN ATTORNEYS HAVE FACED4
A prospective client consults with an attorney regarding obtaining a divorce from her spouse. The spouse is a former client the attorney represented in a domestic violence case. Can the attorney provide representation in the divorce?
MRPC Rule 1.9 prohibits representation since it is a substantially related matter if the former client’s interests are materially adverse to those of the potential client. It would be difficult, if not impossible, to maintain the domestic violence client’s confidences in litigation where domestic violence could be used to gain an advantage. This is especially true if the case also involves custody determination. This situation requires an analysis of the likelihood that an actual conflict between the two parties would arise.5 “The question is often one of proximity and degree.”6
Both the mother and father in a child welfare case seek representation from the same attorney. The clients’ interests differ, but there is no other attorney on the court appointment list to take the case.
MRPC Rule 1.7(b) prohibits representation of both parties because their interests differ. While a possible conflict does not necessarily prohibit representation, the attorney cannot represent both in cases where the parties’ interests differ from the start. Under this rule, “[a] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client. …”
The only way the lawyer could represent both clients is if the lawyer believes dual representation would not adversely affect either client and the clients consent after consultation and explanation of the advantages and risks.7 If the lawyer is unsure, a good approach would be to ask a disinterested lawyer to review the situation and determine whether he would conclude that the client should not consent to dual representation.8 While this scenario presents a difficult situation, it can potentially be resolved by asking the court to appoint an attorney from the appointment list of a neighboring county.
An existing client seeks representation on a new issue regarding violation of an easement. The attorney discovers that the possible defendant is a business associate of her husband and occasionally refers work to the attorney.
This is the type of scenario that happens often in small communities. Per MRPC 1.7(b), representation could be materially limited by the lawyer’s own interests — i.e., interest in maintaining a referral relationship and not adversely affecting her husband’s business relationship. If the lawyer believes that representation will not be affected and the client consents after consultation, the lawyer may accept representation.
A public defender has a conflict of interest in an appointment, but no other attorney can take the case. How can appointment proceed? The first question is determining whether the conflict is due to the public defender’s relationship with the defendant or prior representation of the complaining witness. If the public defender believes she can maintain the confidences of the client and provide a vigorous defense, the appointment can be accepted if the client consents after consultation as required by MRPC 1.7. If the issue is that the public defender already has a client whose interests are in direct opposition to the new appointment, the representation cannot proceed. The recommendation here would be to ask the court to appoint a public defender from another county.
A lawyer moves from one firm to another. A prospective client comes to the new firm for consultation. The prospective client’s case conflicts with the new lawyer’s former client. Can the new lawyer be screened from the prospective client so the new firm can provide representation?
The question is whether there is an imputed disqualification of the new firm based upon the new lawyer’s prior representation of a client with adverse interests. MRPC 1.10(b) prohibits representation unless the new lawyer is screened from any participation in the matter and receives no part of the fee the firm receives. Additionally, the firm must notify the appropriate tribunal to ensure compliance with MRPC 1.10(b). In accordance with the rule, the new firm can represent the potential client so long as the new attorney is screened or shielded from any involvement. This includes ensuring the new lawyer is not part of case discussions, has no access to client files, and does not receive any portion of the fee paid by the client.
This is the same as scenario 5, but the new lawyer’s former client comes with her to the new practice. Hence, the former client is now a client of the new firm. Can the new firm represent the prospective client?
MRPC 1.10(a) states that when lawyers are associated in a firm, none can take a case when they would be barred from doing so if they could not when practicing alone. This situation requires an analysis under MRPC 1.7: Specifically, is representation of the existing client directly adverse to the prospective client? Representation is barred unless the lawyer believes such representation will not adversely affect the relationship with either client and both parties consent after consultation.
Most attorneys are adept at determining whether conflicts exist. The dilemma then becomes what to do with the potential client if the lawyer must decline representation. My practical experience in these instances is that the legal community of a small town will do what they can to help ensure clients have representation. Sometimes, that means referring a client to an attorney in a county an hour or more away. While not ideal, most courts are open to allowing attorneys to appear via telephone or Zoom. My first contested hearing after moving to northern Michigan involved a case in a county in the Upper Peninsula more than three hours from my office. The judge kindly let me appear via Zoom to avoid travel expenses and additional fees for my client. Of course, this is something that must be verified with each individual court as different rules apply to virtual appearances.
If the attorney is still in doubt as to whether the conflict requires declining representation, consider the appearance of impropriety. This can be a subjective determination since “impropriety” is not defined in the rules, but it can be a good guideline.
Small-town practice is fulfilling and, more often than not, clients appreciate that that they know their attorneys outside of the case.