An individual that I previously represented visited me the other day. Turns out he was injured in an automobile accident where he was driving and the other car made a left turn in front of his vehicle. He wanted me to represent him and his family that were passengers in his car. I informed him that I would gladly take his case, but I would have to decline representation of the passengers, who would need to hire a different attorney. This news not only surprised him, but made him somewhat annoyed with me, so I had to explain to him about conflicts of interest.
Attorneys are supposed to represent their clients competently and diligently and to the utmost of their abilities. Attorneys are not allowed to accept employment where their loyalties may be divided.
Conflicts of interest can arise in many different situations.
New York Lawyer Disciplinary Rule 5-101(a) states:
A lawyer shall not accept or continue employment if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer's own financial, business, property, or personal interests, unless a disinterested lawyer would believe that the representation of the client will not be adversely affected thereby and the client consents to the representation after full disclosure of the implications of the lawyer's interest.
This means, "Don't go into business with your client." Many lawyers have gotten into ethical trouble for entering into business relationships or partnerships with people they represent, and then fighting with them. This rule can also mean that a lawyer shouldn't take piece of a client's business instead of a cash fee, if it might affect his or her professional judgment.
New York Lawyer Disciplinary Rule 5-105(a) states:
A lawyer shall decline proffered employment if the exercise of independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve the lawyer in representing differing interests....
Disciplinary Rule 5-101 prohibits conflicts between the interests of a lawyer and the interests of a client. DR 5-105 prohibits a lawyer from representing more than one client if their interests conflict. This means "Don't be greedy," accept one client only, or accept only those clients who have like legal interests.
For example, one lawyer can't represent both a buyer and a seller in a real estate deal ' such as the sale/purchase of a house. Although this may seem like common sense, it's been attempted.
Also, lawyers can't represent opposing parties in a lawsuit. For example, an attorney can not represent both the plaintiff (the party bringing the action) and the defendant (the party the action is being brought against).
It's not really about the lawyer possibly seeking two fees, but the danger lies more in the fact that one client may benefit through the use of confidential information obtained from the other.
In addition to the possible misuse of confidential information, DR 5-105 seeks to avoid the possibility that a lawyer with two clients with differing or adverse interests might not fight as hard as he or she could for one against the other.
Can one client consent to an attorney representing another client with an adverse interest? The answer is, "sometimes." To circle back to my original problem ' the former client who wanted me to represent him and his passengers ' it would have been unwise for me to try to represent both driver and passengers. The reason being: if my former client (a driver) was found even just 1% at fault for causing the accident, that would deprive his passengers of a pocket to reach their hands into. Put differently, they might get less money with only one car driver to sue, rather than two.
A court has held: A law firm's representation of both infant passenger and his mother as plaintiffs in personal injury action arising from a collision created a conflict of interest that required the firm's disqualification, although the passenger did not assert a claim against his mother; the passenger's failure to assert a claim against his mother, who was driving at time of collision, did not resolve the issue of her negligence, so as to eliminate potentially differing interests of co-plaintiffs. Shaikh ex rel. Shaikh v. Waiters, 2000, 185 Misc.2d 52.
Finally, and in case you were wondering, while not exactly a "conflict of interest," a lawyer cannot have sexual relations with a client unless a consensual relationship already existed between them before the attorney-client relationship commenced.
New York Regulation Section 1200.29-a states:
(b) A lawyer shall not:
(1) require or demand sexual relations with a client or third party incident to or as a condition of any professional representation;
(2) employ coercion, intimidation, or undue influence in entering into sexual relations with a client; or
(3) in domestic relations matters [such as a divorce], enter into sexual relations with a client during the course of the lawyer's representation of the client.
Believe me, we wouldn't need the rule if these things didn't happen.
We are fortunate to live in a time having medications that alleviate uncomfortable, even life threatening symptoms of physical and mental dis-ease. Yet, traditional medicine in the developed countries continue to use only two primary methods to treat patients complaints; medication, generally in the form of pills, and surgery.
When you visit your doctor and have a symptom, you get a pill, a second symptom, another pill, a third symptom still another pill with little regard for the drug interactions, neutralization of the efficacy or increased effects that one drug may have on another.
Take a woman in her sixties who has high blood pressure, headaches, and fatigue and is overweight. She will be given a pill to lower her blood pressure, another to regulate her cholesterol, another to increase her energy and yet another for her headaches, possibly another to regulate her weight. Five medications. She may get short-term relief but faces potential long-term ramifications, including possible life threatening side effects and complications.
Where and how do doctors decide what drugs to prescribe? From drug company representatives of course. They haunt offices of physicians offering bribes in the form of candy for the office staff for "just a minute to talk to the doctor," to free samples, inscribed pens, to lavish gifts including cherished tickets to college and professional sports games, trips and dinners in fancy restaurants. In fact a whopping 30 % of the marketing budgets of pharmaceutical companies is used to "educate " physicians and lure them into writing prescriptions for their latest banner drug. Other obvious methods of drug use seduction are television and print media ads to encourage people to request a specific medication from their doctors.
This is blatant conflict of interest.
I have personally been prescribed Vioxx, Permex, Advandia and female hormones when generic and /or cheaper alternatives were/are available. I am 74 years old and I have Type 11 diabetes with a family history of heart disease, yet the Federal Drug Administration (FDA) either warned or removed all of these drugs from the market due to the danger of causing heart attacks and strokes. What was my doctor thinking of when he put me on these drugs? Or was his decision motivated by propaganda by some drug salesman?
These designer, non-generic drugs are very expensive for both the Medicare Advantage program (ultimately the tax-payer), my insurance company, and for me with an expensive co-pay, when they paid at all. I live on a fixed income and paying of expensive drugs creates a financial hardship for me. Additionally they put me in life threatening danger of an early death.
The FDA as the alleged watchdog on drug safety is not doing its job. They are just another front for unscrupulous drug companies who value profit more than developing drugs that can save lives. They claim to be understaffed.
Take Advandia for example, it is prescribed to over 1 million Americans for treatment of Type 11 Diabetes. In an analysis by Steven Nisson, M.D. of the Cleveland Clinic and former president of the American College of Cardiology reported in the New England Journal of Medicine on May 21, 2007 that his analysis of 42 clinical trials suggest that the drug could cause a 43% increase in heart attack risk. Yet doctors continue to prescribe it for their patients.
Drugs are often tested by pharmaceutical companies on 25-year-old medical students who are paid to be guinea pigs, and then after approved by the FDA prescribed for 65-year-old woman or 75-year- old man who have different body weights, blood pressures, and other medical problems.
The drug testers have a lot to lose by reporting any side effects, namely that they may be excluded from the current test or future tests and thus lose the money they are paid. So even when they experience side effects they don't report them. Even so?called double blind studies have problems in credibility for the reasons outlined above.
Congress must be more pro-active in: Overseeing the role of the FDA, regulating the conflict of interest between drug companies and physicians, price controls.
This is a serious issue for America and must be addressed immediately.
Both Gary E Rosenberg & are contributors for EditorialToday. The above articles have been edited for relevancy and timeliness. All write-ups, reviews, tips and guides published by EditorialToday.com and its partners or affiliates are for informational purposes only. They should not be used for any legal or any other type of advice. We do not endorse any author, contributor, writer or article posted by our team.
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