Lawyers often develop long-term professional relationships with their clients, especially when the attorney is only one of a handful of attorneys in the local area (as is often the case in rural parts of the state). The same attorney a young couple consults for advice during their first home purchase is likely to be the same attorney the couple goes to when looking to start a new business or when they need to establish and amend their estate plan. The trust and feelings of comfort that such a professional relationship engenders are not easily replaced. When the couple determines that their marriage is not salvageable and a divorce is needed, both spouses may run to the same attorney they have known and turned to for years. Not only may this attorney not be the best choice to handle their divorce, but ethical rules governing conflicts of interest may also prevent the attorney from representing either of the spouses during the divorce.
What Is a Conflict of Interest?
Professional rules that govern the conduct of attorneys are clear: an attorney owes an obligation to his or her client to advocate forcefully on their behalf and to remain loyal to that client’s best interests. Even after a lawyer has ceased actively representing a client – for example, the lawyer had drawn up a will years ago at the request of a client and the client made no further requests for service or assistance – the lawyer owes a duty of loyalty to that client. For example, that lawyer may not use information he or she learned about the client during the course of representation (i.e., lists of assets or other financial information discovered during the course of representation) to sue the client or take an adverse action against the client on behalf of a new client. When a lawyer cannot give a present client his or her independent judgment and loyalty because of ethical obligations to previous clients, a conflict of interest exists and the lawyer must excuse him- or herself from representing the new client.
Who Must Discover the Conflict of Interest?
Lawyers and/or law firms have the obligation to check for potential conflicts of interest before accepting a new client. If a conflict is discovered during the course of representing the client, the lawyer has an obligation to disclose this and may need to withdraw from representing the client. (Note that in some cases a lawyer can continue representing a client despite the existence of a conflict of interest: in these rare cases, however, the lawyer must disclose the nature of the conflict to the new client and previous client, must obtain the written permission of both the new client and the previous client to proceed with the representation, and must be able to certify to the court that he or she can remain a loyal and effective advocate and representative to all involved parties – especially the new client.)
The skilled DuPage County divorce attorneys at our law firm are able to assist clients throughout Illinois with divorce and family law issues. Contact our Wheaton or Oswego office for experienced legal assistance and representation today.