What constitutes a conflict of interest for an attorney?

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What constitutes a conflict of interest for an attorney?

I am appointed POA for my mother. My sister is backup POA if I am unable and unwilling to perform my duties. My sister is trying to activate her POA. I just found out that my sister’s lawyer is the same as my mother’s lawyer. This seems to create a conflict of interest on the lawyers part. hat do you think?

Asked on June 24, 2014 under Estate Planning, Arizona

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

I am assuming that he represented your Mother first here.  If representing your sister creates a "concurrent" conflict of interest he can not represent your sister (for one exception). A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

BUT, and this is a big but, the conflict may be waived in writing and:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law; and

(3) 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.

It is not clear to me that the conflict will in fact exist but there is always a possibility.  If you believe that your sister in unduly influencing your Mom that is another related issue that could create a conflict.  You should speak with an attorney in your area yourself.  Good luck.


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