Also known as: serious potential conflicts · conflict of interest
Written by attorneys — see sources below.
A circumstance in which a lawyer's concurrent representation of multiple clients creates a substantial likelihood that the lawyer's loyalties will be divided or that the representation of one client will be materially limited by duties owed to another. The circumstance justifies a court's disqualification of counsel even though no actual conflict has yet materialized.
Lena Ortiz retained Mason Cole to defend her tax-evasion indictment. Cole's firm had previously represented Ortiz's former accountant, now a government witness. After both clients executed written waivers, the trial judge still disqualified Cole because the waivers did not eliminate the serious potential for conflict arising from the concurrent representation.
Attorney Serena Soto represented both the estate and an heir in probate proceedings. She advised the heir to consent to a below-market sale of estate land to Soto's own corporation. The court found the concurrent representation created a serious potential for conflict and disqualified Soto from further representation of either party.
Sterling Dynamics retained a law firm to defend a contract claim while the same firm, in a different office, sued Sterling on behalf of another client in an unrelated patent matter. The court disqualified the firm because simultaneous representation of one client while opposing that same client in another matter created a per se serious potential for conflict.
Simon Stern and his former accountant both executed detailed written waivers after the court conducted an on-the-record inquiry into the accountant's status as a government witness. Because the waivers were knowing and the prosecutor did not object, the judge permitted continued representation despite the serious potential for conflict that had initially existed.
Defense counsel simultaneously represented a university and a criminal defendant whose case involved university property. After judgment, the defendant discovered the dual representation. The appellate court found the serious potential for conflict required disqualification of counsel even without proof of actual divided loyalty.
Defense counsel continued to hold bonds issued by a city that was a victim in the pending criminal case. Even though counsel did not participate in rulings affecting the city's interests, the conduct created a serious potential for conflict and warranted disqualification from further representation.
No. Wheat v. United States holds that a trial court may disqualify counsel upon a showing of a serious potential for conflict even if no actual conflict has yet arisen. The standard recognizes that conflicts are notoriously difficult to predict in the pretrial stage.
Supporting sources
It arises most readily when jointly represented persons may compete for immunity or when one witness's testimony could incriminate another. Courts apply the Wheat standard and may disqualify counsel even if the clients are willing to waive conflict-free representation.
The error is structural. Automatic reversal is required without any showing that substitute counsel performed deficiently or that the outcome would have differed.
Supporting sources
Yes. Even when clients execute informed waivers, a court retains discretion to disqualify counsel if it finds a serious potential for conflict that would undermine the fairness or integrity of the proceedings.
Supporting sources
…investigation by the Attorney General or other Department of Justice official "may result in a personal, financial, or political conflict of interest." : The Special Division is a division of the United States Court of Appeals for the District of Columbia Circuit. 28 U. S. C. § 49 (1982 ed., Supp. V). The court consists of three…