Barely Legally

Confessions of a Moot Court Bailiff

Purchasing Power

Lawyers have specific rules about conflicts of interest. Because of the nature of advocacy, you want your lawyer to have your interests in mind as he earns his paycheck. If your lawyer is also being paid by the other side to have their interests in mind, you’re not really getting advocacy so much as arbitration. (Sidebar: arbitration, by the way, is much cheaper than going to trial, and you can generally get your claim resolved much more quickly.)

The other big concern, of course, is keeping confidential information that your lawyer has confidential. To that end, not only is a lawyer prohibited from representing both sides of a conflict, but every other lawyer in his firm is prohibited from representing his opponents. And not just within the same trial, but in any two trials (about the same legal issue) where two clients have diametrically opposed interests.

A lawyer that is found to have a conflict of interest is disqualified from the case, and forfeits the right to bill his client. Whoops. All that time you spent working on the case before someone pointed out your conflict of interest? Turns out it was pro bono! Congratulations.

I’m simplifying, of course. But there are implications even in the simple version of the rule. In the age of huge law firms with an army of lawyers located in offices all around the world, it can be complicated to figure out which branch is representing whom, and which lawyer in which branch is representing whom.

In the olden days, this rule made a lot of sense. A law firm was comprised of three gentlemen who would sit down for tea every afternoon and talk about what they were working on. But law firms kept getting bigger and bigger, and eventually, the rule seemed kind of silly. There were five hundred lawyers in three different offices, and the lawyers from one office couldn’t pick lawyers from another out of a police lineup.

These days, the rule seems like a good idea, because computer networks have made it possible to share more information with more people than ever before. While two attorneys from two offices on two continents might not have ever met, they can share information (whether intentionally or not) that ought to be held in confidentiality.

At some point, some lawyer got the bright idea to treat conflicts of interest not just as situations to be avoided, but situations to be created.

Apparently, large corporations are continually buying and selling pieces of other companies, attempting to create a hopelessly tangled web of business relationships. If you own a stake in a dozen companies that each retain a firm, that’s a dozen firms that can’t sue you. Even better, if you can create a conflict of interest with your opponent’s lawyers during a trial, you can disqualify them from the case, and force new lawyers to come in and start all over.

As far as I can tell, being a good lawyer involves more than just being good at the practice of law. Sometimes, it involves being a cunning bastard advocate and thinking of all the unorthodox things you can do to represent your client. Why beat the other team’s lawyer when you can disqualify him? One of my professors likes to say “you’re not being paid to be ‘fair,’ you’re being paid to do the best job you can.” There’s a reason jokes like this are so popular.