Chapter 4. Ethics & Professionalism - Conflicts and disqualification

Rule of Professional Conduct 1.7(a) states the general rule that “a lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer's own interests or the lawyer's duties to another client, a former client, or a third person will materially and adversely affect the representation of the client.” ¹ Rule 1.7(b) permits waiver of many conflicts after the client has consulted with the lawyer, received “reasonable and adequate information about the material risks of the representation,” and has had an “opportunity to consult with independent counsel.” But Rule 1.7(c) prohibits waiver where it is prohibited by law, or with regard to parties adverse to each other in the same or a substantially related proceedings, or where the representation “involves circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation to one or more of the affected clients.”

Rule 1.8 prohibits, among other things, use of “information gained in the professional relationship with a client to the disadvantage of the client unless the client consents after consultation”;² aggregate settlement of claims involving two or more clients without disclosure of the existence and nature of all claims and client consent after consultation;³ and representation of a client against a party represented by a parent, child, sibling, or spouse of the lawyer without disclosure to the client regarding the relationship and consent after consultation. The provision regarding client expenses is treated elsewhere herein.

Rule 1.9 provides that “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.” Moreover, lawyers are prohibited from knowingly representing a person in the same or a substantially related matter in which a firm that the lawyer was formerly associated had previously represented a client whose interests are materially adverse to that person, and about whom the lawyer had acquired information protected by confidentiality rules. Lawyers are prohibited from using information obtained about a former client, in either the current firm or a former firm, to the disadvantage of a former client. Thus, a lawyer who formerly did defense work for a hospital or a manufacturer, and in so doing gained intimate knowledge of the inner workings of that former client, may be unable to participate in representation of plaintiffs with claims against them.

Rule 1.10 addresses the circumstances where a firm may be disqualified due to a conflict involving one lawyer in the firm.

Loyalty to the client is the basis of the conflict of interest rules. The lawyer should be conscientious in disclosing and carefully considering anything that may impair the lawyer's ability to give the client's interest paramount importance, unalloyed by other business or personal considerations. In a large metropolitan area, it is statistically improbable that a lawyer exclusively representing personal injury clients will encounter many actual conflicts of interest, except those arising among parties in the same incident, e.g., driver and passenger, husband and wife, etc. But the lawyer with a general practice in a small town where the fabric of community is woven much more tightly, real or apparent conflicts may abound on all sides. If a conflict is waivable, the practitioner should take care to disclose anything that would even “smell” like a conflict, discuss it with any current or former clients who are affected, and proceed only if there is informed written consent from each client involved.

If a non-waivable conflict arises after representation has been undertaken, the lawyer should withdraw from the representation.⁴ Where more than one client is involved and the lawyer withdraws because a conflict arises after representation, whether the lawyer may continue to represent any of the clients is determined by Rule 1.9 Conflict of Interest: Former Client.⁵ As to whether a client-lawyer relationship exists or, having once been established, is continuing, see Comment to Rule 1.3: Diligence; and Scope.

¹ State Bar of Georgia, Rules of Professional Conduct, Rule 1.7.

² State Bar of Georgia, Rules of Professional Conduct, Rule 1.8(b).

³ State Bar of Georgia, Rules of Professional Conduct, Rule 1.8(g).

⁴ See State Bar of Georgia, Rules of Professional Conduct, Rule 1.16.

⁵ See also State Bar of Georgia, Rules of Professional Conduct, Rule 2.2(b).

On May 22, 2018, former State Bar of Georgia president Ken Shigley will be a candidate for election to the Georgia Court of Appeals. The only other candidate is Ken Hodges, a former Dougherty County District Attorney. Ken Hodges was the Democratic Party nominee for Attorney General in 2010.