Conflicts of Interest and the Indigent Client: Barring the Door to the Last Lawyer in Town

Abstract

In order to revisit the application of conflict of interest principles to legal services practice, this article employs a survey of legal services providers. In addition to setting a context for discussion by determining the nature of the conflicts most frequently encountered by legal services offices, the survey resulted in two significant findings. First, the legal services client who is denied representation due to a conflict of interest most often is left without any source of representation. Second, the conflicts that most frequently lead to the denial of representation of the indigent client often do not involve any actual prejudice to the client. Building upon the findings of the survey, this article argues that the presumption of prejudice inherent in conflict principles serves to unnecessarily deny the legal services client access to the only available source of representation. It examines and compares the interests involved in the legal services attorney-client relationship to that involved in the for-profit attorney client relationship. That examination shows that the lack of pecuniary interests of the legal services attorney, when coupled with the unique interest of the legal services client in representation from the only available source, makes the presumptions of prejudice necessary for the protection of the for-profit client unnecessary and therefore inappropriate to the legal services attorney-client relationship. Consequently, this article argues that, in the legal services context, the application of conflict of interest principles should be based upon a standard of actual prejudice rather than on the present presumption of prejudice standard. This article also will address the arguments of courts and commentators who have claimed that a different application of conflict of interest principles in legal services would result in an unacceptable compromise of client interests.