Chapter 10 - Conflicts of Interest - Special Rules

Question 1

1.8(a) - can’t do business with clients unless…. (6 points)

Answer 1

• terms are fair and reasonable, fully disclosed, and easily understood
• client is told to have another lawyer review the terms (and given the opportunity)
• client give informed consent (signed by client)
• to the essential terms
• to the lawyer’s role
• IN WRITING

Question 2

1.8(b) A lawyer shall not _____ unless _______

Answer 2

• use information relating to representation of a client to the disadvantage of the client
• the client gives informed consent, except as permitted or required by these Rules.

Question 3

Model Rule 1.8(a) also does not normally apply to…

Answer 3

“standard or routine commercial transactions.”

Question 4

How does a lawyer prove the terms of his business deal with the client were fair and reasonable? .

Answer 4

If it’s the Picasso or some land or anything else of uncertain value, get an appraisal or an estimate

Question 5

The lawyer must ____ the client to seek the advice of independent counsel (and the client must be given the opportunity to consult) to review the terms of the deal. The client must give ____ consent in a writing ___ by the client, and the consent must be to the essential terms of the deal, and to the lawyer’s , i.e. is the lawyer representing the client in this transaction, or not.

Answer 5

• advise
• informed
• signed
• role

Question 6

Pay Legal Fees With Stock?

Answer 6

Yes.

Question 7

If paying legal fees with stock, what two rules must the lawyer comply with?

Answer 7

the lawyer must comply with both rule 1.5 (the fee must be reasonable) and rule 1.8(a) (the terms must be fair and reasonable, must be disclosed in writing, client must be encouraged to seek independent representation).

Question 8

Presumptively Invalid . . .

Transactions entered into during ______ are _______.

Transactions between an attorney and client are presumed to be____ , so that the _____ has the burden of proving fairness and honesty.

Answer 8

• the existence of a fiduciary relationship
• presumptively invalid as the product of undue influence
• fraudulent
• attorney

Question 9

RLGL 3rd § 127(2)


Client Gift to a Lawyer

A lawyer may not accept a gift from a client, including a testamentary gift, unless: (3)

Answer 9

• Lawyer is a relative;
• Value is insubstantial; OR
• Client has received independent advice, or has been encouraged to seek such advice

Question 10

Testamentary Gifts & Lawyer As Executor: Comment [8]: “does not prohibit….

Answer 10

a lawyer from seeking to have the lawyer … named as executor of the client’s estate” or other lucrative position. But see Rule 1.7 conflict of interest!

Question 11

Model Rule 1.8(d): Literary Rights: until the matter is concluded, a lawyer can’t….

Answer 11

make a deal for a story based on the representation.

Question 12

Model Rule 1.8(e): Financial Assistance To Client: a lawyer shall not ______ , except: (2)

Answer 12

• pay money to a client, or loan a client money in connection with pending or contemplated litigation

• Lawyer may advance court costs and expenses of litigation only . . .
• May pay court costs and expenses for indigent clients.

Question 13

Model Rule 1.8(f): the lawyer shall not ______ unless: (3)

Answer 13

• be paid by somebody other than the client to represent the client

• Client gives informed consent to the arrangement;
• The person paying for representation does not interfere;
• Client info is kept confidential and not shared with person who pays.

Question 14

Burrow

Answer 14

π does not need to prove actual damage for fee forfeiture, not automatic or complete, question for jury

Question 15

The Burrow court added what to the factors listed in section 37

Answer 15

“The public interest in maintaining the integrity of attorney-client relationships.”

Question 16

RLGL § 37: Fee Forfeiture: a lawyer engaging in _____ to a client may be required to forfeit some or all of the lawyer’s compensation.

Answer 16

clear and serious violation of duty

Question 17

RLGL § 37: Fee Forfeiture: Considerations

Answer 17

• gravity and timing of violation;
• willfulness
• effect on the value of the lawyer’s work
• any other threatened or actual harm to the client
• adequacy of other remedies

Question 18

RLGL § 37: Fee Forfeiture comment e: “Ordinarily, forfeiture extends to ____ for the matter for which the lawyer was retained …” Yikes! But see: “Sometimes forfeiture for the entire matter is _____ … when _______…”

Answer 18

• all fees
• inappropriate
• a lawyer performed valuable services before the misconduct began

Question 19

Model Rule 1.8(h)

Limitation of Liability to Client


A lawyer shall not:

A lawyers can’t make a deal limiting her client’s _____, unless the client is represented by ______.

A lawyer can’t settle a malpractice claim with an unrepresented client or former client unless ______ and ________.

Answer 19

• ability to sue for malpractice
• his own independent lawyer
• the client is advised in writing to seek advice of independent legal counsel
• is given the opportunity to do so

Question 20

Model Rule 1.8(i)

Proprietary Interest In Litigation

A lawyer shall not _____,

Answer 20

acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client

Question 21

Model Rule 1.8(i)

Proprietary Interest In Litigation

except that the lawyer may:

Answer 21

1. acquire a lien authorized by law to secure the lawyer’s fee or expenses; AND
2. contract with a client for a reasonable contingent fee in a civil case.

Question 22

Model Rule 1.8(j) A lawyer shall not ____ unless _____

Answer 22

• have sexual relations with a client

* a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Question 23

Model Rule 1.8(k)

Answer 23

While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.

Question 24

Model Rule 1.8(f) $ 3P

A lawyer shall not _____
unless: (3)

Answer 24

• accept compensation for representing a client from one other than the client

• the client gives informed consent;
• no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; AND
• info kept confidential.

Question 25

Generally for insurance problem

Answer 25

• you have one client - the insured
• you may still have duties to 3P (insurer) IF they’re consistent with duties to client-insured (interactions with insured are still confidential)

Question 26

Whether the lawyer has one client or two is…

Answer 26

is a matter of insurance law