In this week’s Ethical Lawyering in a Global Community class, students discussed the lawyer’s duty to not act for a client in a situation of conflict of interest. The professor described a situation where a lawyer tells a potential client that the lawyer cannot represent them because the other party in the dispute already discussed the case with the lawyer. The ensuing controversy among my classmates about whether a conflict of interest arose in this situation motivated me to consider the possibility that we were facing a sorites problem, and whether the unwanted implications of sorites problems might affect discussions on the duty to avoid conflict of interest.
Sorites problems are situations where the boundaries between two states are unclear. The classic example is the point where a pile of sand becomes a heap of sand. A pile of sand is a small collection of sand, and a heap of sand is a large collection of sand. It would seem that we could gradually add grains of sand to a pile of sand and eventually make that pile into a heap of sand.
The idea is that we are not clearly justified in preferring that the pile of sand becomes a heap of sand at 1000 grains of sand rather than any neighbouring number, such as 1001 or 999 grains of sand. It might likewise be unclear at which point a lawyer has breached their duty to avoid a situation of conflict of interest. Is it when the lawyer has discussed legal issues with the other party in the dispute or at some other undefined point—such as merely knowing the other party in the dispute, which might seem to be only slightly less severe than discussing legal issues with the other party?
One interesting implication of a sorites problem is the claim that the problem obfuscates the distinction between states that are not clearly divided. Just as it would follow that there is no distinction between piles of sand and heaps of sand, there would likewise be no distinction between breaching and not breaching the lawyer’s duty to avoid situations of conflict of interest. If so, the duty not to breach one’s duty to avoid situations of conflict of interest requires nothing of lawyers—there is no difference between breaching and not breaching that duty.