I've talked about the issue of "conflicts" before, but I'm coming back to it since it occupies a virtually unique position in legal-land vs. everywhere else in the economy.  (In what other industry, in fact, does it remotely approach its importance to law firms and clients?  Intel not being able to sell its chips to all comers?  Caterpillar its earth-movers?  Boeing its jetliners?  Yet all of these are, to say the least, potent products.)

In the wake of the Freshfields disqualification from the Marks & Spencer takeover battle, Legal Week has published a feature on conflicts, which is worth reading in its entirety.  Among the salient points:  Clients appear deeply conflicted (no pun, etc.) about what even constitutes an objectionable "conflict."  For example, when asked the completely straightforward question, "What is your attitude towards a firm you've engaged for a particular piece of advice acting on the opposite side?", the replies break down:

• never acceptable:  30%
• presumably unacceptable without my consent: 20%
• always acceptable with my consent: 40%
• not a problem at all:  10%

More interestingly from an economic perspective is whether clients don't in fact benefit from the expertise of a firm that has a large "market share" in a particular industry?  Developing a sophisticated and cutting-edge nanotechnology practice, for example, is not for the faint of heart (or the shallow of pocket):  Why wouldn't a nanotech startup want to avail itself of the best advice on the market?

Strict notions of conflicts also permit a pernicious form of gamesmanship—certainly where they are backed up by strict ethical sanctions.  When Tony Soprano was about to divorce Camilla, he "retained" every high-powered divorce lawyer in New Jersey, so that, in a series of vignettes which struck one as either cruel or brilliant, Camilla learned on phone call after phone call that the hot-shot lawyers she wanted to hire were conflicted out.  Please explain to me how this advances the cause of justice or enhances the image of the bar.

I believe a thorough re-think of the notion of, and the ethical and economic justifications for conflict "jurisprudence," is in order.  The economic justifications have long eluded me; now the ethical ones are seeming murky as well.