Conflicts of Interest and Institutional Litigants


This paper uses techniques borrowed from the field of game theory to describe rational bargaining among institutional litigants, and explains how the results, while often not leading to the rational outcome in a given case, do rationally serve a more general strategy. The paper then reviews the law on conflicts of interests and concludes that such conflicts—as between attorney and client, and among clients—will often result when institutional litigants bargain. The paper continues with a review on the law of waiver and provides a basis to accommodate the conflicts of interests. That accommodation however will often not be practical, and so conflicts of interests will often result. I conclude with a suggestion that the rules of professional responsibility be modified.


Dispute Resolution and Arbitration | Law | Legal Ethics and Professional Responsibility | Legal Profession

Date of this Version

October 2006