The Practice of SystematicaLLy "Conflicting Out" Potential Opposing Attorneys Has Negative EthicaL and Legal ImpLications and ShouLd Be Deterred

Jill Hersh, CFLS¹

Jill Hersh has been a member of the Bar since 1978. She is the managing attorney for the Hersh FamilyLaw Practice, a trial and appellate family law firm. She is a fellow of the International Academy of Family Lawyers and the American Academy of Matrimonial Lawyers and is the 2006 recipient of the CLAY award for her work in Family Law. Jill is a Certified Family Law Specialist whose firm specializes in complex family law matters, ranging from complex and high asset matters to same-sex and high conflict parenting disputes. Jill has argued before the Supreme Courts of California and Vermont and was the lead trial and appellate lawyer in the published appellate decisions, In Re Guardianship of Olivia J and Marriage of de Guigne, and the published Supreme Court decisions, Estate of MacDonaldand K.M. v. E.G. She has written articles and is an instructional speaker in Family Law and serves as a private and pro tem settlement judge.

have noticed a proliferation of instances in which a potential client has been unable to find an attorney of her/his choice "in county" because virtually "everyone" has been "conflicted out" by her/his spouse. This precludes the potential client’s ability to find a suitable lawyer in her/his county of residence, creates unnecessary and added duress finding counsel, and also deprives attorneys of clients. In some instances, this may constitute interference with access to counsel if a hearing date is imminent.²

The purpose of this article is to explore the current ethical and legal environment surrounding the formation of the attorney/client relationship and the attempt to disrupt the other party’s ability to form that relationship.