For many years, my practice focused on professionalism and compliance with legal ethics. I was trained to look at a law practice through a single lens: does this comply with the Rules of Professional Conduct? Since joining the PLF in 2025, I’ve added a second lens: how can malpractice risk be avoided? This dual-lens analysis drew my attention to conflicts of interest.

Most lawyers first encounter conflicts of interest in professional responsibility classes during law school. This academic introduction often frames conflicts purely as a disciplinary matter for the Bar. While unchecked conflicts certainly risk licensee sanctions, they also hand malpractice plaintiffs an airtight theory of liability.

Two Separate Tracks

Here’s the distinction I want to draw, because it’s the spine of everything that follows: an ethics violation and a malpractice claim are fundamentally different.

The Oregon Rules of Professional Conduct govern the ethics track for lawyers and licensed paralegals (LPs). Generally, ORPC 1.7 regarding conflicts of interest prohibits representation of a client if the practitioner’s loyalty and service to that client are materially limited by another interest. The limitation can occur because of the practitioner’s duties to another client, a former client, a third person, or even the lawyer’s or LP’s own interests. Conflicts can also occur under special situations that tend to give the practitioner an unfair advantage over the client. These situations are detailed in ORPC 1.8 and include such things as engaging in business transactions with a client or having sexual relations with a client, to name a few.

Malpractice runs on a different track entirely. An ethics violation is not automatically malpractice. The ORPCs do not create a private cause of action simply because a rule was violated. Malpractice requires something more: actual harm to the client caused by a breach of the standard of care.

So a conflict of interest can violate the ORPCs without ever becoming a malpractice claim. And certainly, malpractice claims exist without any violation of the ORPCs. But when harm to the client results from a conflict of interest, the two tracks converge; and that convergence is what makes conflicts uniquely dangerous.
 

Where the Tracks Meet: The Mechanism of Harm

The malpractice danger in a conflict isn’t simply the existence of the conflict. It’s what results from the divided loyalty.

Consider an auto accident where the driver and the passenger sustain injuries. As friends, they visit your office and want you to represent them together in their claims. The dual representation seems efficient for the needs of the clients. But the passenger’s strongest claim may land with the driver’s own negligence. If you represent both, you have every incentive not to push hard on that theory, and the passenger’s recovery dwindles.

This is the core of the malpractice claim. You may have good intentions to accommodate the friends for the sake of their relationship. But when their interests aren’t entirely aligned, one of them suffers. Whether it’s a claim or defense that never gets raised or a settlement offer that serves the needs of one client but shorts the other, you are unable to fully represent the interests of both clients simultaneously.

Once a plaintiff’s malpractice expert has identified a conflict of interest, the theory of the case goes beyond just establishing negligence. They can show motive. Rather than simply argue how a reasonable lawyer would have acted differently, they will emphasize why the harm occurred—divided loyalty. That shift matters because a breach of fiduciary duty resulting from a conflict is much more difficult to defend.

Another category of conflicts, one that deserves particular scorn, is promoting your own interests at the expense of your client. This, however, may be the most difficult type of conflict for a lawyer or LP to objectively identify.  A legal practitioner who favors their own interests over their client’s abandons their sacred oath. In other conflicts, when the competing loyalty favors another client, at least the lawyer is failing someone in service of another. But trading the client’s interest for the lawyer’s or LP’s own benefit is the ultimate betrayal of justice. This is the conflicts category least likely to earn any benefit of the doubt.
 

The Conflict Check as Defense

It helps to stop thinking of the conflict check as an administrative chore and start thinking of it as a liability shield.

The best protection is to run a robust legal conflict check at intake. An effective procedure will comprehensively cross-reference full names, alternate spellings, aliases, spouse/partner names, and related business entities. Don’t just screen the potential client but include the opposing party, opposing counsel, co-parties, co-counsel, and key witnesses. Document the scope of the search, who ran it, and when it was conducted. And then re-run the conflict check whenever a new party enters the matter or when your firm hires new staff.

If you find a conflict and think it can be overcome with a waiver, get accurate ethics advice to confirm that. Then document your disclosure to the client. Include what was explained, what alternatives were discussed, and what the client actually said.

When your analysis of a potential conflict is a close call and the right thing to do feels ambiguous, treat that as a signal to decline the representation or withdraw. Afterall, losing a client is far better than defending an ethics complaint and the possibility of a malpractice claim.

Conclusion

Loyalty in the practice of law isn’t only an ethical ideal. It is a defensive posture. The diligence that satisfies requirements in the ORPCs is the same protocol that defeats a future malpractice theory. Conflict checking protects the client and practitioner alike.

For additional information and assistance with creating an effective system to check for conflicts of interest, contact the Practice Management Assistance Program at the PLF. For an assessment of your own system, have a look at our Conflicts of Interest Self Audit.