How Lawyers Should Approach Situations Posing Possible Conflicts of Interest– Generally

This is the 10th and final of a series of articles, based on a chapter from the 2015 edition of Lawyers’ Professional Responsibility in Colorado by attorney Michael T. Mihm, discussing the current law of conflicts of interest as it applies to Colorado lawyers. It draws upon the Colorado Rules of Professional Conduct; the former Colorado Rules of Professional Conduct, effective through December 31, 2007 (former Colorado Rules or former Colo. RPC); Colorado appellate decisions; ethics opinions; the ABA Model Rules of Professional Conduct; the Restatement (Third) of the Law Governing Lawyers (Restatement); and other resources.

A lawyer should analyze all conflict of interest issues through the prism of

1. loyalty to the client;
2. maintaining the client’s trust;
3. protecting the client’s confidences and private information; and
4. maintaining the lawyer’s professional independence.

When confronted with a possible conflict of interest, a lawyer analyzing the conflict should ask the following practical questions:

If I undertake this representation —

1. Are my personal interests or my law firm’s interests such that I may be tempted to “pull my punches” or fail to vigorously advocate for the client?
2. Are the interests of another existing or former client such that I may be tempted to fail to vigorously advocate for the new client?
3. If I fail to assert a position on behalf of a new client because of a conflict with my interests or the interests of my law firm or another client, will that failure adversely and materially affect the interests of the new client?
4. If I vigorously assert a position on behalf of the new client, will that vigorous advocacy adversely and materially affect the interests of an existing or former client?
5. Is there a risk that I will need to use (or may use) information about a current or former client in a way that materially disadvantages that client?

If the answer to any of these questions is “yes,” then the lawyer may have a conflict of interest. The lawyer should think very carefully about the proposed representation.
I have come to believe that every lawyer should possess a quiet, nagging, internal voice that signals a potential problem. If that internal voice suggests that there may be a problem with a conflict of interest, then there usually is a problem. A lawyer ignores that internal voice at his or her peril.