Conflicts of Interest in the Practice of Law and the Regulation of Disinterestedness

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This research will investigate the social organization of conflict of interest and its regulation in the world of private legal practice. The core precept of fiduciary or professional obligation is that trustees cannot serve two masters. This "duty of loyalty," which requires that fiduciaries be disinterested, that they put the interests of those they act for or represent before their own, is particularly intriguing, not only because "real world" trustees routinely serve many masters, but because their masters often want them to. The providers and consumers of trust, therefore, devise strategies to exploit the desirable features of conflicts of interest while searching out more disinterested trustees or at least devising regulatory strategies to disable the persistent temptations of those who are not. This research asks how law firms and lawyers construe conflicts of interest and how they formally and informally manage them. How often and from what sources do potential conflicts arise for individual lawyers and their firms? How are law firms structured to identify, evaluate and respond to them? How do lawyers evaluate the potential risks and trade-offs in accepting or declining a piece of business? What steps do they take to minimize these risks? Do the incidence and sources of conflict of interest or the strategies by which lawyers regulate them vary by the type and setting of the law practice? What impact do these self-regulatory activities have on the everyday practice of law? The research, set in Illinois, will be conducted at two levels of analysis: (1) firms or collections of lawyers and (2) individual lawyers. In the first phase of the study, law firm partners with greatest authority over conflict matters will be questioned about firm policies, practices, and procedures regarding issues that create potential conflicts of interest for the firm or for lawyers within the firm. These interviews will explore the sources of conflicts of interest and the self-regulatory mechanisms through which the firm routinely anticipates, neutralizes and adjudicates them. In the second phase, a sample of lawyers in various areas of legal practice will be interviewed about how, as individuals, they encounter, construe, manage, avoid, disregard, or neutralize conflicts of interest. In order to investigate how structural variations in the organization of the law firm, its location in the community, career trajectories of its lawyers, and configurations of and relations with clients give rise to different role conflicts and unique self-regulatory responses, samples will be stratified by firm size and location (Chicago/downstate and urban/rural). Individual and firm samples will be randomly drawn from a triangulated composite of four independent lawyer registries or directories. A total of 165 interviews will be conducted. This research will make a major contribution to understanding an important policy issue and to the theoretical literature on organizational and professional behavior.