No Such Thing as ‘Attorney Estoppel’: Ethical Conflicts and Attorney Prior Publications

Abstract

Law school graduates today are increasingly freighted with Internet-accessible and readily searchable publication records. Can these publications create actionable conflicts of interest for attorneys later on? Assessing the relevance of attorney publications requires balancing clients’ entitlement to adequate and zealous representation against the rights of lawyers to express opinions and participate freely in social discourse. The Model Rules offer little guidance, and academics have largely skirted the issue. This paper presents the Publication Conflicts test, a framework for inquiry to assess the impact of prior publications. Then, informed by interviews with judges, ethics experts, law professors and practitioners, this paper presents the view that in general, an attorney’s prior publications lie outside the ‘bounded exclusivity’ that attorneys owe their clients, and thus, do not amount to meaningful conflicts of interest.