,,,Understanding Conflicts of Interest in Environmental Law

Conflicts of interest pose recurring professional responsibility and practice management challenges for lawyers and are a persistent source of professional liability exposure. Conflicts of interest may spawn breach of fiduciary duty and professional negligence allegations, require lawyers to decline potentially lucrative representations, disqualify lawyers from representations or force their withdrawal from cases, compel law firms to disgorge fees, bruise lawyers’ relationships with clients, and generate negative publicity that may at least temporarily harm law firms’ reputations. Predictably, then, law firm general counsels rank conflicts of interest among their top risk management concerns. At the same time, law firm general counsels understandably cite conflicts as the one area in which lawyers require the most education. Conflicts of interest are often complicated. There are some bright line rules, such as a lawyer’s inability to represent both the plaintiff and the defendant in the same case, but many answers to conflicts questions are unclear. Who is the client? What is direct adversity? When do lawyers’ relationships with current clients, former clients, or third parties create a substantial risk of material limitations in proposed concurrent representations? When does a client’s consent to a conflict of interest qualify as informed? In the case of former client conflicts, when are successive matters substantially related? The list of questions goes on. Although conflicts of interest arise in all practice areas, they seem to pervade environmental matters. Experienced environmental lawyers