WHAT IS A CONFLICT OF INTEREST? –
There are many types of conflicts of interest in the legal setting. There are enough that attorneys have written entire books covering them all. In personal injury law, there are some types of conflicts that we see more often than others. A good example is the conflict that can arise when representing more than one person involved in the same motor vehicle accident when the driver is possible comparatively at fault.
For example, John Smith and his wife, Mary, are driving to the grocery and Mary is the passenger. A collision occurs when John is making a left turn into the parking lot of the grocery store. John believed he had a green turn arrow, and the other driver thought they had a green light to travel straight. Obviously one of the drivers is incorrect about the status of their traffic signal. Mary agrees with John that they had a green turn arrow. The fact that Mary agrees with John is helpful to both of their cases but does not remedy the conflict problem that has now arisen.
If we had been retained as attorneys for both Mary and John under the belief that there was not a dispute about how the accident happened, we are now in a conflicted position between our two clients. While their case is strong, there is still the possibility that a jury will find that John did not have the green arrow and that he, therefore, did not have the right of way and is at fault for causing the accident. Even if the jury were to allocate only a portion of fault to John – 1% – there would still be a conflict for us as attorneys because we cannot be in the position of advocating for one client against another client. We cannot represent Mary against John when he is also our client. In this scenario, we would have to withdraw from representation of both clients because they each need individual representation as Mary would have to include her husband as a defendant in a lawsuit along with the other driver in order to ensure that Mary, who was a fault-free passenger, gets all of the compensation that she is allowed under the law. This conflict of interest is a strong one and is therefore deemed not waivable by clients even if they wanted to do so. Accordingly, we would no longer be allowed to represent either client as we cannot use the information we received from both clients when we first retained them against only one of them later, and so we cannot continue to represent either one under these unique circumstances.