As lawyers, we are constantly reminded about conflicts of interest. It starts in law school, is reinforced with professional responsibility exams, and is solidified on a daily basis in each of our practices. Generally, most of us do our best to avoid potential conflict of interest land mines. But what about other professions? Do doctors, accountants, engineers, and other professionals do as well as lawyers in understanding, identifying, and remedying conflicts of interest?
Take, for example, my real estate agent. Let’s call him Lou. Lou helped us sell our home recently and now is helping us look for a new house. Rarely, if ever, does Lou proactively show us homes listed by other agents. Rather than helping us look for the “right” home, Lou only tells us about and shows us his listings. Recently, we made an offer on a home that Lou had listed, and when we suggested offering less than full asking price, he seemed dismayed, stating that he thought the listing price was a fair—of course he thinks it is. The following article, Dual Agency: How a Real Estate Agent May Be Two-Timing You, further illustrates my frustration. What is my remedy in a situation like this? Will my real estate agent help me find an objective agent to represent my interests in this transaction? Even though Michigan requires knowledge and informed consent, in writing, by both parties under MCL 339.2517(3), for a dual agency relationship, the reality is that agents “informally” show listings that are theirs and push for pricing they help to set for those listings, way before a formal agreement pertaining to dual agency is ever signed.
What about my Edward Jones financial advisor? Sure, she wants to make me money, but she can make a lot more money for herself and Edward Jones if she recommends certain investments, mutual funds, etc., that pay her commissions and assess me fees. Even though Edward Jones discloses this conflict of interest, it may be lost on the everyday investor who is not combing the fine print on each and every statement. The simple churning of my investments by buying and selling only the products that pay my advisor is just plain wrong: even with the disclosure I am left second-guessing every recommendation by my advisor, wondering each time whether it is sound advice for me or a cash infusion for her.
Finally, who is looking out for my mom when her doctor continues to prescribe her Xarelto despite her immediate negative side effects? Is this a drug that he has a personal stake in or is paid by the drug company to recommend? I did some digging, and at most I was able to find a clinical study sponsored by the hospital where he is on staff. But we are still left wondering whether these types of conflicts of interest are inherent in the practice of medicine. According to this recent New York Times article, "Doctors’ Magical Thinking About Conflicts of Interest," the answer is yes.
So the next time you hear a lawyer joke that disparages the profession, think about all the other professions that are less regulated when it comes to conflicts of interest and just smile.