This essay, which boasts of being the first law review article devoted to what professional responsibility insiders call the “hot potato doctrine,” will discuss some of the unanswered questions about the doctrine’s core principle: a firm may not turn a present client into a former client by “firing” the client in order to get the benefit of the more lenient conflict of interest rules that apply to former clients. Exactly how does this modify the rules laid down by the Model Rules of Professional Conduct governing conflicts of interest and withdrawal from representations? What is the justification for refusing to apply the former client conflict rule to someone who is, after all, a former client? Should the doctrine be applied if it is the client who reacts to the conflict of interest 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 or when the lawyers involved have done their best to avoid the conflict? 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?
Conflicts of Interest: Slicing the Hot Potato Doctrine,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol48/iss1/26