What is a conflict of interest, and what are the risks if it is not disclosed?

• A. A clash between duties to two clients; example: representing two clients with conflicting interests with informed consent; failure to disclose risks confidentiality breach and malpractice.
• B. A conflict is only if you cannot represent both; no disclosure needed.
• C. Conflicts cannot be waived.
• D. Conflicts exist only in criminal cases.

Answer: (A)

A conflict of interest happens when a lawyer’s duties to two or more clients, or to a client and to personal or other interests, could influence or appear to influence professional judgment. In practice, this means a clash of loyalties or competing obligations. Because loyalty and confidentiality are fundamental, lawyers must disclose the situation and obtain informed consent from the affected client or clients, usually in writing, after fully explaining the risks. If the conflict isn’t disclosed, the client risks having confidential information misused or inadequately protected, the lawyer’s ability to represent the client fairly compromised, and possible malpractice claims or disciplinary action for ethical violations. The example given—representing two clients with conflicting interests with informed consent—illustrates how disclosure allows the client to decide whether to proceed or to seek alternative representation. The other statements fail because conflicts can exist even when both sides can be represented, conflicts can sometimes be waived with informed consent, and conflicts aren’t limited to criminal cases.