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Legal Malpractice: Conflict of Interest

Attorneys practicing law in our state are legally and ethically required to adhere to the Colorado Rules of Professional Conduct when providing legal representation to their clients. This Code itemizes duties and conduct that govern the lawyer/client relationship. When an attorney fails to perform his duties within the scope of these rules, and this results in harm to his client, this may be a case of legal malpractice. Conflicts of interest are an area strictly governed by these Rules and one of the 10 most common types of legal malpractice claims asserted by clients.

What Is a Legal Conflict of Interest?

A lawyer's loyalty and duty must be to his client. Generally speaking, anything that sways, affects or diminishes this loyalty has the potential of being a conflict of interest. As a client, you have right to representation that you can trust from an attorney whose clear, undivided fidelity is to you and your case or claim. A conflict of interest may result from any situation where there is a significant risk that your attorney's own interests or his loyalty to another client or third party may adversely affect his legal representation of you in a material manner.

Examples of Conflicts of Interest

No conflict of interest legal malpractice claim is "cut and dried". All the relevant facts and circumstances must be weighed and considered on a case-by-case basis. Therefore, the following situations are only examples of highly suspect areas where a conflict of interest might exist. Some areas are far more likely than others.

  • Representing both spouses in a divorce
  • Representing both the buyer and the seller in a business or real property transaction
  • Suing a current client, despite whether the matter is related to his client's legal representation
  • Representing both a plaintiff and a defendant in a civil suit
  • Representing a plaintiff against a defendant for whom you have provided extensive legal services in the past

Informed Consent and Waivers

Not every potential conflict of interest must lead to a parting of the ways between you and the attorney you are considering for your legal counsel. Informed consent is a valuable method of addressing this issue before it can become a problem. In these situations, the attorney must provide you, and any other client affected, with full disclosure of the possible conflict. He should spell out the risks and receive a consent from each of you in writing to waive the conflict. Your consent must be fully informed and voluntary.

If you believe that your attorney put his interests or that of someone else ahead of your own, while legally representing you, contact a Colorado legal malpractice attorney to discuss your potential claim.

Sources: http://www.cobar.org/rulesofprofessionalconduct, http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/conflictsofinterest.html

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