A conflict of interest may arise at any time in a legal situation involving adversarial litigants who have been represented or are currently being represented by the same attorney. One of the first steps an attorney will take when investigating a potential legal filing is to check for having previously represented or currently being the counsel for anyone else involved in the legal action. Most attorneys will point this situation out if they find conflicting interests. A conflict of interest can also occur when another member of a law firm has represented the opposing litigant, or anyone in a group of litigants. The conflict can be either direct or indirect.
Defining the Term "Conflict of Interest"
The first part of the definition should include an understanding of the term "interest" within a legal application. Attorneys have an interest in providing the best competent counsel they can for their clients, including the concept of attorney-client confidentiality and privilege, as the general conflict of interest occurs when the legal counsel has access to information on both sides of a legal argument that may compromise the lawyer's incentive to provide honest representation.
This conflict of interest can also include any defending respondent in an et al court filing or even in a negotiation before the court motion. An et al case is a legal claim involving a group of individual litigants filing together on either side of the legal argument.
Forms of Legal Conflict of Interest
A conflict of interest can occur in several forms, but the most direct and obvious conflict of interest occurs when the attorney represents both parties in a case at the same time, such as in a divorce or child custody proceeding. A conflict of interest can also occur when an attorney represents two different clients and the consequences of one case adjudication can be detrimental to outcome of the other client's legal issue.
In addition, a conflict of interest can also include instances when the attorney is also a witness in a legal action involving a client or when the attorney also has an external business relationship with either client. While this is a direct conflict, if other members of the attorney's law firm have business relationships with a client this could well be an indirect conflict of interest.
Public Defender Conflict of Interest
When the court appoints a public defender (who is paid by the state) to a case, there is concern that this is also a conflict of interest. While this may be a situation of impropriety, the real concern is that the defending attorney will be concerned with the prosecution interest of the state instead of the primary interest of the appointed client.
The Constitution guarantees an indigent defendant will have state-appointed free counsel, especially in potential incarceration cases, but the real conflict usually arises when a public defender is representing multiple defendants in the same case and the defendants offer competing versions of the act resulting in case prosecution.
Conflicting public defenders can be removed from a case for good cause, even on a request from a defendant concerned with improper jurisprudence, but the judge in any prosecution can remove a public defender and replace them with a pro bono private attorney if they are willing to accept the case, and providing there is no direct or indirect conflict of interest.