Good Ol' Common Sense Holds the Answer to Many Ethical Quandaries

State and National bar associations have all promulgated Rules of Professional Conduct that are meant to guide attorneys through the practice of law in an ethical manner. As litigators, we are often confronted with ethical questions during the life of our cases. They can occur at any step in the process: from case selection, through pleadings and discovery, all the way to trial and appeal. Some can be dealt with easily, and others require more thought and careful consideration. While the Rules are there to guide us as to how to deal with ethical quandaries, one thing to never leave out of the process is something we all possess, whether we went to law school or not, and that is common sense.

One ethical consideration that can arise very early in the process is determining whether you, as the attorney, have a conflict of interest that would preclude your representation of a particular client. Some conflicts are easy to spot (i.e. trying to represent both the husband and wife in a divorce, or taking on a plaintiff's case against one of your insurance company clients). Others are trickier to spot (i.e. representing both the driver and the passenger against a third party in a car accident).

Most Rules of Professional Conduct allow for representation, even in conflict situations, if a proper waiver is obtained from the parties involved. If you are contemplating getting your clients to waive the conflict of interest, you may want to pause to allow your common sense to guide you as to whether that is a good idea. Take a long, hard look at the situation and determine whether you truly can do the best for each client if you represent them both. Take my example above, trying to represent both the passenger and the driver against a third party in a car accident case. Many states are "comparative fault" states. This means that the passenger really should make a claim against both the driver and the third party in order to fully protect her interests. If you represent both the passenger and the driver, how is that going to make your driver-client feel when you start calling up their insurance company looking for a settlement. Common sense would seem to dictate that it would be best to take on one or the other, but not both. This will allow you to zealously represent your client without any concern for how that will affect the other parties.

This is just one example of how common sense may lead you to a better decision than the Rules of Professional Conduct. I am sure you all have your own examples of how common sense has helped you resolve ethical quandaries in your practice, and, in honor of "Use Your Common Sense Day" (November 4), I invite you to share them here so we can all learn from each other.