Policy Considerations Behind the Conflict of Interest Rules

The rules regulating lawyers’ conflicts of interest arise out of a number of competing policy concerns. These policy concerns tacitly acknowledge that lawyers are human. They are vulnerable to the human temptation to put one’s self-interest above another interest. Even when our job as lawyers is to put our client’s interest ahead of all others, including our own.

The first, and most important, policy concern is the principle that a client has a right to a lawyer who will be loyal to the client and in whom the client can trust. Colorado Rule of Professional Conduct (Colo. RPC) 1.7, cmt. [1] (“Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.”); 2 Restatement § 121, cmt. a; Restatement § 128 (2002). The conflict of interest rules seek to promote trust between the client and the lawyer. Loyalty and trust are ends in themselves. Id. Without a client’s confidence that a lawyer is loyal, there can be no genuine trust.

A client benefits from the ability to trust his or her lawyer because the client is assured that the lawyer will provide legal advice. The legal advice will be untainted by the claims or interests of another, and the lawyer will be the client’s advocate and protector. The client also benefits because the client feels free to confide in the lawyer. He or she knows that the lawyer will keep those communications confidential, and knows that the lawyer will provide legal advice based upon all of the facts, rather than on incomplete facts.

A lawyer also benefits from a client’s trust. The lawyer benefits because trust creates an environment in which the client will confide in the lawyer and share all of the pertinent facts. A client’s candor and full disclosure permit the lawyer to properly evaluate the facts. This allows the lawyer to provide the best possible legal advice to the client. This results in effectively representing and protecting the client.

The second policy concern underlying the conflict of interest rules is closely related to the first. That policy concern is the interest in enhancing effective legal representation. Restatement § 121, cmt. a. Conflicts of interest undermine a lawyer’s independence and professional judgment. Id. If a lawyer’s professional judgment is influenced by personal, financial, or professional concerns that compete with the client’s, the lawyer may, consciously or unconsciously, fail to provide the client with accurate or complete legal advice. Indeed, the lawyer’s ability to effectively represent the client depends upon a client’s trust. If a client does not fully trust the lawyer because of concerns about the lawyer’s loyalty, the client may not disclose all necessary information to the lawyer. This may indirectly hinder the lawyer’s ability to provide accurate and effective legal advice.

The third policy concern is that a lawyer be a client’s protector and vigorous advocate. A conflict of interest may interfere with a lawyer’s ability to represent the client with appropriate vigor. Id. When a lawyer is tugged by competing loyalties, the lawyer may be tempted to “pull her punches” for a client. The lawyer may be tempted not disclose to the client all viable options, may fail to sue all of the appropriate parties, may fail to assert all of the appropriate claims or defenses, or may fail to make all of the arguments that the lawyer should make under the circumstances.

In short, conflicts of interest undermine a client’s expectation of effective legal representation. They also undermine a lawyer’s ability to provide effective legal representation. See Restatement § 16.

If you think you have a legal malpractice claim against your lawyer or a law firm, whether in Colorado or another state, contact Michael T. Mihm.