Also known as: potential conflicts · potential conflict of interest
Written by attorneys · grounded in primary & secondary sources — see below
A situation in which a lawyer's or judge's personal interests, prior representations, or financial holdings raise a reasonable possibility of divided loyalties or bias that could impair impartial performance of professional duties.
Select any source to read its text and confirm it supports the definition.
Judge Perry Pratt owns bonds issued by the City of Pioneer. While litigation over the city's bond obligations is pending before him, Pratt continues to purchase additional notes. The ongoing acquisitions create a potential conflict that subjects Pratt to judicial discipline even though he took no part in any ruling affecting the city's payments.
Federal prosecutors seek to introduce evidence seized by state officers under a state warrant later found invalid. The federal court must decide whether to apply federal exclusionary standards or defer to the state's more lenient rule. This choice creates a potential conflict between the two court systems on the same conduct.
Congress enacts a statute directing federal courts to reopen certain final securities-fraud judgments. The legislation pits legislative power to alter outcomes against the judiciary's authority to protect its own final decisions. The resulting tension produces a potential conflict among the three branches.
A coal company facing a massive verdict contributes millions to the state supreme court justice's campaign. The justice refuses to recuse. The contribution creates a potential conflict that may require disqualification to preserve due process for the opposing party.
A trial judge issues a broad gag order to protect a murder defendant's right to an impartial jury. Local newspapers challenge the order as prior restraint. The order pits the defendant's fair-trial rights against the press's First Amendment interests and creates a potential conflict between the two guarantees.
A public defender previously represented the victim in an unrelated matter and now represents the defendant charged with murdering that victim. The prior representation creates a potential conflict that may require withdrawal or waiver inquiry before the case proceeds.
A lawyer must disclose a potential conflict whenever the lawyer's personal or professional interests could reasonably affect the representation. Disclosure allows the client to decide whether to consent or seek other counsel. The duty arises even if the lawyer believes the conflict will not materialize.
Supporting sources
A potential conflict exists when circumstances create a reasonable possibility of divided loyalties. An actual conflict exists when those circumstances have already impaired the lawyer's ability to represent the client zealously. Courts and ethics rules treat the two differently for disqualification and discipline purposes.
…as here, this Court has created the impediment. Rigid rules often make good law, but judgments in areas such as the review of potential conflicts among the three coequal branches of the Federal Government partake of art as well as science. That is why we have so often reiterated the insight of Justice Jackson: "The actual art of…
…these two important rights was anticipated, yet it is inconceivable that the authors of the Constitution were unaware of the potential conflicts
…village mayor with authority to try those accused of violating a law prohibiting the possession of alcoholic beverages faced two potential conflicts
…now rejected by the Court, police conduct sustained by state law would not be affected. Third. The Court's new rule creates potential conflict
…illness, intoxication or any other cause" could negate the ability to form specific required mental states. There is certainly a potential conflict
Supporting sources
No. After a lawyer leaves, the firm is disqualified only if the new matter is the same or substantially related to the departed lawyer's prior work and a remaining lawyer holds material confidential information. A mere potential conflict that existed while the lawyer was present does not survive automatically.
Supporting sources
Yes. When directors face a potential conflict that makes a recommendation inappropriate, the board may abstain from recommending for or against dissolution. It must still disclose the conflict and the reason for withholding a recommendation before submitting the proposal to shareholders.
Supporting sources
Model Rule 8.5 provides a safe harbor. A lawyer is not subject to discipline if the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the conduct will occur. This rule minimizes potential conflicts among differing state ethics rules.
Supporting sources