Conflict of Interest

The term “conflict of interest” in the legal world refers to a situation wherein an individual is in a position to exploit his professional capacity for his own benefit. For example, a conflict of interest would arise if one law firm tried to represent both parties in a divorce case. This problem is typically found in the medical and political worlds, in addition to the legal world. To explore this concept, consider the following conflict of interest definition.

Definition of Conflict of interest

Noun

1. A situation that arises wherein a professional, be it an attorney or a judge, is put in a position where he can leverage his professional capacity to his own benefit.

Origin

1545-1555

Attorney Conflict of Interest

An attorney conflict of interest arises when an attorney takes on a new client who has interests that are adverse to the interests of someone the attorney is currently representing or has represented in the past. For example, a conflict of interest in this regard would come up if an attorney tried to represent both the husband and wife in a divorce case. Each party wants the exact opposite of what the other person wants, so how could the attorney effectively and successfully represent their interests? He couldn’t.

An attorney conflict of interest could arise if the attorney did not do his homework to see whether a new client he is taking on is, in some way, related to another client of his and has adverse interests to that client. However, a more devious attorney may levy his professional standing as a way to make more money. For example, a conflict of interest would arise if he represented Company A in a past case against Company B, and later Company B wanted to use him to sue Company A. The attorney could then rightfully be penalized for agreeing to take on the latter case.

Conflict of Interest Disclosure

If a lawyer realizes he may be embroiled in a potential conflict of interest, then he has a duty to disclose it for review. In many cases, he may be able to submit a conflict of interest disclosure statement. In a conflict of interest disclosure statement, the individual can detail the situation that has arisen and why he believes it may be an issue. The judge can then decide whether the lawyer should stay on as his client’s attorney, or if he should be relieved from the case, and his client ordered to hire someone new.

It should be noted, too, that judges can also become entangled in a conflict of interest. For instance, if a judge and an attorney were close friends while the judge was still an attorney and before the judge was elected as a judge, the attorney may be required to withdraw from the case. Failing that, the judge can recuse himself to avoid any potential conflicts of interest if the judge feels he is unable to remain impartial to the parties involved.

Conflict of Interest Policy

Some companies create what are called “conflict of interest policies.” A conflict of interest policy explains the types of situations wherein an employee’s personal interests may conflict with the interests of the company he works for. Typically, a conflict of interest policy focuses on the opportunities that an employee may be able to use to his advantage to the detriment of the company.

A conflict of interest policy should contain a clear explanation of what to do in the event that a conflict of interest arises. It should also include information that helps an individual identify a conflict of interest when it arises, as well as who is responsible – and how – for addressing and resolving any potential conflicts. Some conflict of interest policies are not clear on punishments for those caught pursuing a conflict of interest type of situation, however others clearly note that the penalty for such a violation is discipline or flat-out termination.

Conflict of Interest Waiver

A conflict of interest waiver differs based on the situation it pertains to. A conflict of interest waiver is drafted up by a professional, in this case the attorney, after the attorney has explained the kind of situation that may present a conflict of interest to his client. If his client chooses to “waive” the potential conflict of interest and have the attorney represent him anyway, then the attorney will draft a conflict of interest waiver for him to review and sign off on.

However, this does not fix every situation wherein a conflict of interest may present itself. Simply put, some conflicts of interest are simply not waivable. It is only waivable if the attorney is sure he can provide fair and adequate representation to his client and will not be influenced whatsoever by whatever is causing the potential conflict. Using the example provided earlier, there is no way an attorney could promise to represent both of his clients fairly if he chose to represent both parties to a contested divorce action. It’s simply not possible.

The kind of information that would be included in a conflict of interest waiver should include:

• A detailed account of the conflict in question
• The attorney’s explanation for how he believes he could work around this problem and still provide fair representation
• The benefits to the client of waiving a conflict of interest, such as not having to start fresh with a new attorney
• The downsides of the waiver, such as the attorney still being influenced by his personal interests despite his best efforts not to be

No matter what, a conflict of interest waiver should always be in writing. This issue is too important to simply take someone’s word for it, as then there would be no proof to illustrate that the individual did, in fact, know about a potential conflict of interest and waived it anyway.

Conflict of Interest Example Involving a Murder Conviction

An example of a conflict of interest being brought before the Court can be found in the matter of Mickens v. Taylor, Warden, which was decided in 2002 by the U.S Supreme Court. Here, Walter Mickens, Jr. was convicted of the murder of Timothy Hall and was sentenced to the death penalty. Mickens filed a petition in response, claiming that one of his attorneys had a conflict of interest during the trial and, as a result, he was not provided with effective legal assistance in accordance with the Sixth Amendment.

Mickens’ complaint was against attorney Bryan Saunders, who had previously represented Hall on assault and concealed weapons charges. The same judge who had dismissed those charges assigned Saunders to represent Mickens in his murder case. Notably, Saunders failed to inform the court, the other attorney, or even Mickens that he had represented Hall in the past. Mickens argued that the judge failed to inquire as to whether a potential conflict existed and so, as a result, his conviction should be automatically reversed or, failing that, that Mickens should be relieved of having the burden of proving that the alleged conflict of interest did exist.

The District Court denied Mickens’ claim, and after Mickens took his complaint up on appeal, the Fourth Circuit affirmed the District Court’s decision. Their reasoning was that no adverse effect was shown in Mickens’ case, even if a conflict of interest did exist, and so the conviction should stand. The case eventually made its way up to the U.S. Supreme Court, and the Court ultimately agreed with the lower Court’s decision, citing that it is the defendant’s responsibility to prove that an alleged conflict of interest affected his attorney’s ability to adequately represent him.

Said the Court:

“A defendant alleging ineffective assistance generally must demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Citation omitted). An exception to this general rule presumes a probable effect upon the outcome where assistance of counsel has been denied entirely or during a critical stage of the proceeding. The Court has held in several cases that “circumstances of that magnitude,” (citation omitted), may also arise when the defendant’s attorney actively represented conflicting interests. In Holloway v. Arkansas, (citation omitted), the Court created an automatic reversal rule where counsel is forced to represent codefendants over his timely objection, unless the trial court has determined that there is no conflict. In Cuyler v. Sullivan, (citation omitted), the Court declined to extend Holloway and held that, absent objection, a defendant must demonstrate that a conflict of interest actually affected the adequacy of his representation, (citation omitted), the Court granted certiorari to consider an equal-protection violation, but then remanded for the trial court to determine whether a conflict of interest that the record strongly suggested actually existed (citation omitted).”

Related Legal Terms and Issues

• Recuse – The act of a judge’s excusing himself from a case on the belief that there either exists a possible conflict of interest or an inability to remain impartial.