---
title: "Conflict of interest"
chunk: 3/10
source: "https://en.wikipedia.org/wiki/Conflict_of_interest"
category: "reference"
tags: "science, encyclopedia"
date_saved: "2026-05-05T04:27:55.281412+00:00"
instance: "kb-cron"
---

the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
the representation is not prohibited by law;
the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
each affected client gives informed consent, confirmed in writing.
Informed consent requires that each affected client be fully advised about the material ways that the representation could adversely affect that client. In joint representations, the information provided should include the interests of the lawyer and other affected clients, the courses of action that could be foreclosed due to the joint representation, the potential danger that the client's confidential information might be disclosed, and the potential consequences if the lawyer had to withdraw at a later stage in the proceedings. Merely telling the client that there are conflicts, without further explanation, is not adequate disclosure. The lawyer must fully disclose the potential impairment to the lawyer's loyalty and explain how another unconflicted attorney might better serve the client's interests.

===== Prospective consent to future conflicts =====
It is not unusual in the current legal environment of large multinational and global law firms to seek advance or prospective waivers of future conflicts from their clients. A law firm is particularly likely to seek a prospective waiver when a large corporation seeks the firm's specialized knowledge in a small matter, without a high likelihood of repeat business. As the ABA stated in its Ethics Opinion 93-372:

Prospective waivers are most likely to be upheld by the courts when they are given by sophisticated corporate clients represented by independent counsel in the negotiation of the waiver. However, in Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., the California Supreme Court held that a prospective waiver that did not make specific disclosure of an actual current conflict was not effective to waive that conflict. As the court said,

The Sheppard Mullin case does not invalidate prospective waivers in California. It only holds that waivers of current and actual conflicts must specifically disclose those conflicts, an unremarkable conclusion.

===== The hot potato doctrine =====
If a client will not consent to a conflict and allow a lawyer to take on another representation, the lawyer cannot then withdraw from the existing representation, thus turning the existing client into a former client and ending the duty of loyalty. As the courts have stated, the lawyer cannot "drop a client like a hot potato" to cure a conflict. This label has stuck, and the doctrine is now aptly called the "hot potato" doctrine. However, as one commentator has pointed out, the reasoning underlying this line of cases has been sparse, and few courts have attempted to justify this result through an analysis of the ethics rules. The unstated rationale behind the Hot Potato doctrine is that a withdrawal attempted without good cause under Model Rule 1.16(b) is an ineffective withdrawal, which does not successfully terminate the existing attorney-client relationship. When viewed in this light, a withdrawal accomplished with good cause should be an effective withdrawal that does permit a lawyer to take on a representation that would otherwise be conflicting, as long as there is no substantial relationship with the prior matter. The standard used to assess conflicts involving such former clients will be discussed in the next section.

==== Successive conflicts of interest ====

===== The substantial relationship test =====
Conflicts of interest rules involving former clients are primarily designed to enforce the attorney's duty to preserve a client's confidential information. Model Rule 1.9(a) sets forth this doctrine in a rule that has come to be known as the substantial relationship test. The rule states:

Without the substantial relationship test, a client attempting to prove that its former lawyer possesses its confidential information might have to disclose publicly the very confidential information it is trying to protect. The substantial relationship test was designed to protect against such disclosures. Under this test, the attorney's possession of the former client's confidential information is presumed if "confidential information material to the current dispute would normally have been imparted to the attorney by virtue of the nature of the former representation." The substantial relationship test reconstructs whether confidential information was likely to be imparted by the former client to the lawyer by analyzing "the similarities between the two factual situations, the legal questions posed, and the nature and extent of the attorney's involvement with the cases."

===== Imputation of conflicts =====
The conflicts of an individual lawyer are imputed to all attorneys who "are associated with that lawyer in rendering legal services to others through a law partnership, professional corporation, sole proprietorship, or similar association". This imputation of conflicts can lead to difficulties when attorneys from one law firm leave and join another firm. The issue then arises whether the conflicts of the itinerant lawyer's former firm are imputed to their new firm.
In Kirk v. First American Title Co., the court ruled that an itinerant lawyer's conflicts are not imputed to their new law firm if that firm timely sets up an effective ethics screen preventing the lawyers from imparting any confidential information to the lawyers in the new firm. An effective ethics screen rebuts the presumption that the itinerant lawyers shared confidential information with the lawyers in the new firm. The components of an effective ethics screen, as described by the court in Kirk, are: