Can a military attorney decline representation due to a conflict of interest?

Yes, and in many situations a military attorney is not just permitted but required to decline. The rules of professional conduct, which bind military lawyers as they do all attorneys, treat conflicts of interest as a serious threat to the loyalty a client is owed. Understanding when a conflict requires declining, and when client consent can cure it, is the heart of the issue.

What counts as a conflict

Under the conflict-of-interest rule (Rule 1.7), a conflict generally exists when:

  • The representation of one client would be directly adverse to another client, or
  • There is a significant risk that the representation would be materially limited by the lawyer’s responsibilities to another client, a former client, a third person, or by the lawyer’s own interests.

The common thread is divided loyalty: anything that could pull the lawyer’s commitment away from the client at hand.

The default: decline, unless consent cures it

The rule’s operation is straightforward. If a conflict exists before representation is undertaken, the lawyer must decline the representation, unless the conflict is one that can be waived and the lawyer obtains the informed consent of each affected client. Some conflicts are not consentable at all, no consent can cure them, and the representation simply cannot be undertaken.

So the analysis runs: identify the conflict, ask whether it is waivable, and if so, whether genuine informed consent can be obtained; if not, decline.

When a conflict appears later

Conflicts do not always show up at the start. If one arises after representation has begun and cannot be cured by informed consent, the lawyer must withdraw from the representation, following the rules that govern withdrawal. The obligation to protect against divided loyalty continues throughout the engagement, not just at intake.

This all serves the client’s right to conflict-free representation, an accused, in particular, is entitled to a lawyer whose loyalty is undivided.

Imagine a lawyer asked to take a case against a former client on a related matter: if the conflict cannot be waived, the attorney must decline, because the duty of loyalty does not bend to convenience.

The bottom line is that conflicts of interest govern whether a lawyer may take or keep a case. A conflict that is directly adverse or materially limiting requires declining unless informed consent cures a waivable conflict, some conflicts cannot be waived, and a conflict arising later compels withdrawal, all to preserve the undivided loyalty representation requires.

Frequently Asked Questions

When must a lawyer decline a representation for a conflict?
When a conflict exists before the representation begins, the lawyer must decline unless the conflict is waivable and the lawyer obtains the informed consent of each affected client; some conflicts cannot be waived at all.

Can a client consent to a conflict?
Sometimes. Many conflicts can be cured by the informed consent of each affected client, but certain conflicts are non-consentable, and in those the representation cannot proceed.

What happens if a conflict appears after representation starts?
If the conflict cannot be cured by informed consent, the lawyer must withdraw from the representation, because the duty to avoid divided loyalty continues throughout the engagement.

This article is general information about conflicts of interest. It is not legal advice and does not create an attorney-client relationship. Application is fact-specific and the rules can change. Specific questions should be directed to qualified counsel.

Sources

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