Conflicts of Interest: Slicing the Hot Potato Doctrine
44 Pages Posted: 22 Aug 2010 Last revised: 26 Aug 2010
Date Written: August 19, 2010
The lawyer conflict of interest rules are more stringent when a firm represents two clients simultaneously than when it represents first one and then the other. Some law firms have tried to take advantage of this difference by “firing” an old client so as to be free to accept a new one. Courts have blocked this move, stating that a lawyer cannot drop a client like a hot potato, and that firms that do so remain subject to the more stringent concurrent representation rule. But that leaves many questions open. Does a natural feeling of repugnance for lawyer opportunism warrant adding a new requirement to the Model Rules of Professional Conduct? Should the doctrine be applied if it is the client who reacts to the conflict of interests by discharging the law firm, rather than the firm that withdraws? Does it matter if the firm dropped one client before accepting another, so that there has never been a time at which it represented two clients with conflicting interests? Should the doctrine apply when the conflict has been brought about by a client rather than a lawyer? And when the doctrine does apply, which of the two clients whose interests conflict should be the one to lose the services of the firm? This article, the first to consider the “hot potato doctrine,” tries to answer these and other questions. It will appear in the San Diego Law Review in a memorial issue honoring the late Fred Zacharias.
Keywords: conflicts of interest, hot potato
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