If you’ve been injured and are in the midst of a personal injury trial, your lawyer has already explained to you what the path is likely to look like. In some instances, however, there are motions that can delay or stop a trial. If you hear the phrase “conflict of interest” brought against your lawyer during trial, it’s important to understand the implications and how it could affect your outcome. Let’s start by taking a look at the legal definition of conflict of interest.
Defining Conflict of Interest for a Personal Injury Trial
A lawyer owes a number of duties to a client. According to the American Bar Association (ABA), two of the most important are loyalty and independent judgment. In some situations, conflicts of interest can arise from a lawyer’s responsibilities to another client, a client from the past, or a third person. There are specific ways in which conflict of interest situations are handled.
If a conflict of interest exists prior to representation beginning, the lawyer must decline working for a client. In order to resolve the problem where representation has already begun, the lawyer has to identify their client, determine whether a conflict of interest exists, decide whether the representation can continue, and consult with the affected clients. In some situations, the lawyer is required to withdraw from representation.
Conflicts of interest can be related to personal matters or business issues. In some instances, the defense may declare the plaintiffs’ attorney a conflict of interest in an effort to delay the trial.
Declaring an Attorney a Conflict of Interest
When the defense files a motion based on the potential of the plaintiff’s lawyer being a conflict of interest, that motion needs to provide reasoning. Some of the most common reasons include:
- Potential of Being a Witness. A lawyer is considered a client’s advocate, which means they explain and comment on evidence given by others. A witness, on the other hand, is required to testify on the basis of personal knowledge. According to the ABA, a lawyer cannot advocate as a witness in a trial for a client they’re representing, except in certain circumstances. It’s allowed if the testimony relates to an uncontested issue, the testimony relates to the nature of legal services rendered, or the disqualification of the lawyer would work substantial hardship on the client.
- Accepting a Substantial Gift from a Client. While a lawyer is allowed to accept a gift from a client, it has to meet general standards of fairness. For example, receiving a gift during the holidays or as a token of appreciation is permitted. If the gift is more substantial, however, the ABA views it as presumptively fraudulent.
- Doing Business with a Client. While lawyers can do business with clients, the transaction cannot be closely related to the subject matter of the representation.
- Literary Rights. A conflict of interest is likely to arise if a lawyer acquires literary or media rights concerning the conduct of the representation.
- Financial Assistance. Lawyers are not allowed to subsidize lawsuits or administrative proceedings brought on behalf of their clients. This includes not being allowed to make or guarantee loans for living expenses.
If your lawyer receives a motion regarding conflict of interest, it’s important to understand why it’s happening and what the next steps are. In some cases, the defense can use the motion as a way to tactically have an attorney disqualified.
Conflicts of Interest and Disqualification
It’s often frustrating for an attorney when they agree to work for a client and dedicate themselves to the case, only to face a motion to disqualify. The lawyer then has to explain to their client the process of fighting the motion and the fees associated with that. Motions to disqualify are not rare occurrences. While some are well-founded, others are nothing more than litigation tactics that force attorneys into scrambling to protect a client relationship.
If it’s found there is a conflict of interest, the attorney can be disqualified. Not only does this end the lawyer-client relationship for the trial, but it means the plaintiff is now in a difficult position. However, there are situations where a lawyer responds to a motion to disqualify and is able to fight it.
Contact Belsky, Weinberg & Horowitz, LLC
Navigating a lawsuit and the road bumps that can occur can be challenging, but our lawyers are up to the task. At Belsky, Weinberg & Horowitz, LLC, we have extensive experience handling a variety of personal injury lawsuits. We are fully aware of common delays that arise and are prepared to tackle them, so our clients have the best chances of receiving a verdict in their favor. To learn more about conflicts of interest or the litigation process, give us a call today.