5. Conflict of Interest

Question 1

CURRENT CONFLICT: who does imputation impact?

Answer 1

EVERYONE who works with you! doesn’t need to be a traditional firm—could be a legal aid group, a government agency, etc.

Question 2

CURRENT CONFLICT: imputation exceptions

Answer 2

1) coworkers can accept a client if your conflict stems from a PERSONAL issue (dad is the opposing counsel; you’re married to the defendant and your firm wants to represent the plaintiff; etc.)
2) you can be SCREENED if the conflict is based on your PAST work at a DIFFERENT employer

Question 3

CURRENT CONFLICT: what is screening?

Answer 3

block access to lawyer’s case files; don’t discuss around them; etc.

Question 4

CURRENT CONFLICT: types of concurrent conflict

Answer 4

1) direct adversity (can’t represent if doing so would be directly adverse to another client)
2) material limitation (can’t represent if there’s a SIGNIFICANT risk that doing so would be materially limited by another interest)

Question 5

CURRENT CONFLICT: requirements for waiving

Answer 5

1) reasonable belief that you can represent all affected clients diligently and competently
2) AND INFORMED consent CONFIRMED in writing from EACH client (including oral consent + your follow-up email memorializing)

Question 6

CURRENT CONFLICT: when it’s NOT waivable

Answer 6

1) you don’t meet both of the waiving requirements
2) OR you’re on opposite sides of the same litigation
3) OR representation somehow prohibited by law

Question 7

CURRENT CONFLICT: when are you directly adverse?

Answer 7

1) clients on opposite sides of same matter
2) representing client’s opponent in another matter
3) cross-examining a current client in another matter

Question 8

CURRENT CONFLICT: when is there a material limitation?

Answer 8

1) lawyer has problematic responsibilities to different/former client OR third person
2) OR lawyer has personal interests that get in the way

Question 9

CURRENT CONFLICT: material limitation examples (non-exhaustive)

Answer 9

1) representing co-parties in a case
2) thematic conflict (i.e. in Case A, you’re arguing that Statute 1 is constitutional, but in Case B, you’d need to argue that Statute 1 is UNconstitutional, and outcome of Case A could impact oucome of Case B)
3) your mom is representing your client’s opponent

Question 10

CURRENT CONFLICT: when you can represent co-parties

Answer 10

1) must reasonably believe you can represent all parties well
2) must explain consequences of joint representation
3) must get informed consent
4) must analyze conflict as it evolves (if conflict emerges, you have to deal with it and go through these steps again)

Question 11

CURRENT CONFLICT: case study: using client’s confidential information against them

Answer 11

can’t do it UNLESS

1) client gives informed consent (no need for writing)
2) OR exception to duty of confidentiality applies
3) OR disclosure is otherwise allowed under the rules

Question 12

CURRENT CONFLICT: case study: entering into a transaction with a client—when do you have to take special considerations?

Answer 12

when you’re on equal or higher power grounds than your client (you’re selling them something, you’re going in on a piece of property together, etc.)

THIS APPLIES TO GETTING NON-MONETARY PAYMENT

if they have power over you (you’re cashing checks at their bank or buying bagels from their bagel shop), no big deal.

Question 13

CURRENT CONFLICT: case study: entering into a transaction with a client—what special considerations do you have to take?

Answer 13

1) transaction must be fair and reasonable to client
2) AND lawyer must disclose all terms to client IN WRITING and IN AN UNDERSTANDABLE WAY to the client
3) AND ADVISE client to get independent counsel (and give them time to do so)
4) AND get informed consent in SIGNED WRITING

Question 14

CURRENT CONFLICT: case study: proprietary interest in a LITIGATION COA/subject matter

Answer 14

DON’T DO IT. NOT WAIVABLE. You can’t take on a patent suit and then buy partial ownership in the patent you’re suing on behalf of.

EXCEPTIONS (it’s okay when…)

1) proprietary interest is only in form of contingent fee
2) proprietary interest is only in form of lien on client’s recovery (if law allows)

HOWEVER, imagine same situation, but instead of litigation, you play some transactional role. NO BIG DEAL, as long as you go through the “entering into business” steps

Question 15

CURRENT CONFLICT: case study: gifts from clients—in general

Answer 15

GENERALLY, it’s fine.

Question 16

CURRENT CONFLICT: case study: gifts from clients—special circumstances

Answer 16

LIMITATIONS. you CANNOT

1) solicit substantial gift from client (to you or relative) unless you’re related to client. HOWEVER, The conflicts rule for gifts from clients doesn’t prohibit a lawyer from seeking to have herself or her colleague named as executor of an estate or counsel to the executor or to some other fee-paying position. There may be a general conflict, though, if the lawyer’s interest in obtaining the appointment will materially limit the lawyer’s judgment in advising the client concerning the choice of an executor or other fiduciary.
2) prepare instrument (i.e. will, trust) giving you or a relative a substantial gift, UNLESS donee is related to client. Send to another lawyer if they want to draft you in and you’re not related!
3) have interest in the artistic rights SUBSTANTIALLY related to the outcome of a case that you’re working on. BUT once it’s over, it’s fine.

Question 17

CURRENT CONFLICT: case study: financial help to clients—in general

Answer 17

CANNOT give financial aid to a client in connection with PENDING or CONTEMPLATED litigation (i.e. no loans or guaranteeing of loans)

Question 18

CURRENT CONFLICT: case study: financial help to clients—special circumstances

Answer 18

you MAY

1) advance (NOT PAY) court costs and expenses, even if it’s contingent on outcome
2) pay court costs and expenses outright for INDIGENT clients ONLY (pro bono)

Question 19

CURRENT CONFLICT: don’t fuck your client, pt. 1 (individuals)

Answer 19

just don’t. UNLESS the relationship preexists your attorney-client relationship (and EVEN THEN, evalute it as potential material limitation)

Question 20

CURRENT CONFLICT: don’t fuck your client, pt. 2 (organizations)

Answer 20

CANNOT have sexual relations w someone who supervises/directs/regularly consults with you.

Question 21

CURRENT CONFLICT: case study: class action law suits

Answer 21

If you’re representing a class, unnamed class members are generally NOT considered to be your client.

Question 22

CURRENT CONFLICT: 3rd party fee payment

Answer 22

3d parties are NOT your clients!!! Can only accept 3P fee payment IF
(i) the client gives informed consent,
(ii) the third person doesn’t interfere with the lawyer’s independence or the representation of the client,
and (iii) the arrangement doesn’t compromise the client’s confidential information.

Question 23

CURRENT CONFLICT: when you need WRITTEN informed consent

Answer 23

1) business transactions w clients

2) aggregate settlements

Question 24

PAST CONFLICT: when does someone become a FORMER client?

Answer 24

1) you’re fired
2) finish case (incl. possible appeals, etc.)
3) all matters have come to natural end

Question 25

PAST CONFLICT: restrictions re: FORMER clients

Answer 25

1) duty of confidentiality (unless exceptions apply)—can’t use for disadvantage WITHOUT CONSENT, unless GENERALLY known.
2) CANNOT represent NEW client against FORMER client if matter is SAME as or SUBSTANTIALLY RELATED to former client’s matter (UNLESS CONSENT)

Question 26

PAST CONFLICT: what does “substantial relation” of new/former client matter mean?

Answer 26

1) same transaction/legal dispute
2) OR substantial risk that confidential information would materially advance client’s position (i.e. can’t represent CEO and then represent spouse in divorce—would know about assets)

Question 27

PAST CONFLICT: what do you do if you move to a new firm?

Answer 27

CANNOT work on opposite side of former firm’s client IF you acquired confidential information while at former firm, UNLESS former client consents.

Question 28

PAST CONFLICT: how to screen new hires

Answer 28

1) no sharing of fees
2) no access to files
3) NOTICE TO CLIENT OF ATTY’S OLD FIRM
4) CONTINUED UPDATES TO OLD CLIENT!!

Question 29

PAST CONFLICT: case study: let’s say a client leaves your firm and you want to represent a competitor.

Answer 29

IF even ONE lawyer at firm has confidential material on the former client, FIRM CANNOT WORK ON CASE, UNLESS former client consents.

Question 30

PAST CONFLICT: prospective clients—does duty of confidentiality GENERALLY apply?

Answer 30

YES!! (unless exceptions apply)—can’t use for disadvantage WITHOUT CONSENT, unless GENERALLY known.

Question 31

PAST CONFLICT: prospective clients—exceptions to duty of confidentiality

Answer 31

1) LACK OF GOOD FAITH—if “prospective client” reached out not because he wanted to hire you but because he wanted opponent to not hire you, NO DUTY!!!
2) no reasonable understanding of ASSENT—someone can’t just yell out I WANT YOU TO BE MY LAWYER FOR MY DIVORCE on the street and become prospective.

Question 32

PAST CONFLICT: prospective clients—restrictions on the work you can do

Answer 32

NO adverse representation in same/substantially related matter IF confidential information would be significantly harmful to prospective client.

UNLESS CONSENT.

Question 33

PAST CONFLICT: prospective clients—does conflict impute to firm??

Answer 33

YES!! UNLESS firm shows that they went above and beyond screening—DEMONSTRATE that disqualified lawyer took care to avoid more confidential information than NECESSARY in fielding the case.

Question 34

PAST CONFLICT: government lawyers—if you move from government to PRIVATE PRACTICE, what restrictions are placed on you?

Answer 34

CANNOT represent private client if

1) SAME (missing substantially related!!) matter as government work
2) AND lawyer worked PERSONALLY and SUBSTANTIALLY on the matter while in government

UNLESS CONSENT

Question 35

PAST CONFLICT: government lawyers—what is a “MATTER”?

Answer 35

ONLY “MATTER” IF THERE’S A SPECIFIC SET OF FACTS RE: SPECIFIC PARTY

Question 36

PAST CONFLICT: government lawyers—is it imputed to firm?

Answer 36

YES, but SCREENING works.

Question 37

PAST CONFLICT: case study: government lawyers—during time in government, you gain confidential information about a party. Can you ever represent the party opposite that party?

Answer 37

NOOOOOO—BUT only a conflict if you have ACTUAL knowledge.

Question 38

PAST CONFLICT: government lawyers—what if you move from private practice to GOVERNMENT WORK?

Answer 38

NORMAL conflict rules, PLUS
1) cannot take part in any matter that you were SUBSTANTIALLY and PERSONALLY involved, UNLESS GOVERNMENT (not past client—that’s in normal rules) consents!!!

Question 39

PAST CONFLICT: judiciary—what if you move from 3P neutral to PRIVATE PRACTICE?

Answer 39

Can’t represent client in matter substantially/personally involved in

UNLESS ALLLLL parties to prior proceeding consent

Question 40

PAST CONFLICT: judiciary—how to avoid imputation

Answer 40

1) screening
2) AND notice to ALL parties
3) AND notice to appropriate TRIBUNAL

Question 41

PAST CONFLICT: government/judiciary—looking for PRIVATE employment

Answer 41

CANNOT negotiate for employment with employer on issue you’re PERSONALLY/SUBSTANTIALLY involved with.

EXCEPT LAW CLERKS!!!! just let judge know in advance.

Question 42

PAST CONFLICT: government—what does “confidential government information” mean?

Answer 42

Except when expressly permitted by law, a government lawyer who receives confidential government information about a person must not later represent a private client whose interests are adverse to that person, when the information could be used to the material disadvantage of that person. The rule covers only information actually received by the government lawyer, not information that could be fictionally imputed to the lawyer. “Confidential government information” means information that is gained under government authority and which the government is prohibited from revealing, or has a privilege not to reveal, and which is not otherwise available to the public. If information is available to the public through a channel like the Freedom of Information Act, it isn’t considered confidential government information.

Question 43

if joint clients sue each other, can either claim your ACP?

Answer 43

NO!