California Bar Journal
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A new ethical peril for lawyers: serial conflicts

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Diane Karpman
Diane Karpman

Can you believe that the failure to have a conflicts checking system is a per se violation in New York?  This is not intended to imply that we don't all need to constantly check for conflicts. But . . . (and I may be wrong) I don't believe that a sleepy criminal defense lawyer, bailing out a client at 2 a.m., will run a conflicts check. Conflicts are our worst nightmares, both criminal and civil.

Conflicts affect and infect everyone. Recently, Justice Anthony Kennedy, during oral argument in Mickens v. Taylor, No. 00-9285, pending in the Supreme Court, reportedly remarked that "hundreds of different kinds of conflicts" can emerge. Often, they are concurrent, as when the attorney represents a group, such as two or more investors, passengers in a car, or even lawyers.

Serial conflicts also are in the news. In Mickens, a criminal defense attorney first represented a 17-year-old charged with assault, who subsequently was murdered. The lawyer then represented Mickens, the alleged murderer, and lost the case.

This leaves some dangling questions: Did the defense lawyer totally and vigorously defend the accused? Did he fully investigate and ask the difficult questions? Or, was his defense compromised by the duty to preserve the secrets of his first client, the victim? The continuing duty to the former client (deceased) might color the attorney's consideration of all the options that might benefit his current client. Therefore, possibly the lawyer's attention was divided and not completely focused on the rights of the accused in accordance with the Sixth Amendment.

In American Airlines v. Sheppard, Mullin, et al. (3/8/02) DJDAR 2753, a California Court of Appeal case, a lawyer formerly represented a client, and later became a designated deposition witness (FRCP Rule 30(b)(6)), on behalf of a party other than the client. A breach of fiduciary duty was found, based upon potential disclosure of confidential information.  Although the attorney argued that he was not acting as a "lawyer" but as a "witness," the obligation of confidentiality follows us forever, regardless of the capacity in which we believe we are working.

The court nailed the potential serial conflict squarely, because in responding to the questions as a "witness," the lawyer would be forced to consider whether his response would disclose client confidences. Again, it is a divided focus or split concentration.

In a beautifully phrased opinion, the court addresses the potential problem involving the attorney-client privilege. The client is the holder of the privilege, but the lawyer must claim it for the client. Therefore, in addition to a split focus, issues of privilege could become important.  The lawyer's "promise to maintain the confidences of American is entirely dependent on his self- assumed position as arbiter of his own fidelity and what is and is not a privileged communication."

Although we can multi-task on the computer or talk on the cell phone while driving, when it comes to our clients, we are not permitted to multi-focus without their consent.

Diane Karpman, a legal ethics expert who defends lawyers at the State Bar, can be reached at 310/887-3900 or