Chapter 10 - Fair Dealings And Avoiding Conflict Of Interest Flashcards
Explain this: a lawyer must ascertain if the matter of the prospective client involves a conflict with another client or his own interest.
Explain to the prospective client all circumstances of his relations to the parties and any interest in or connection with the controversy, which in his honest judgement might influence the client in the selection of counsel.
Give five instances that a lawyer should decline employment.
The instances that a lawyer should decline employment are the following:
(1) Matters affecting any interest of his former clients
(2) Matters which the lawyer had intervened while in the government service
(3) Employments with a nature of which might easily be used as a means of advertising his professional services or skill.
(4) Nullifying a contract that a lawyer has furnished
(5) The lawyer is hired in an illegal organization or for an illegal act
Can a lawyer represent conflicting interest?
No, Rule 15.03 states that a lawyer shall not represent conflicting interest except by written consent of all concerned given after a full disclosure of the facts.
In Pomento v. Ponteverde, what are the four representations of conflicting interest that was laid down by the court?
(1) The new retainer will require the attorney to do anything which will injuriously affect his first client, or use use against his first client any knowledge acquired through their connection.
(2) The new retainer will prevent an attorney from the full discharge of his duty of undivided fidelity and loyalty to his client or invite suspicion of unfaithfulness or double dealing in the performance thereof.
(3) The subject matter of the present controversy is related, directly, or indirectly, to the subject matter of the previous litigation in which he appeared for the former client.
(4) If the subject matter of the new client is related to the former client’s action, the lawyer may have to contend for his new client that which he previously opposed as counsel for the former client.
Give 3 examples of situation when there is conflict of interest.
(1) A lawyer representing a respondent of a case and representing as a plaintiff on the same case.
(2) A lawyer representing a party whose interest is contrary to a former client.
(3) A lawyer is a counsel for the estate of a deceased person, but the lawyer’s accounting firm prepared the list of assets and liabilities of the estate. Even though both are instances are from different capacities of the lawyer, it is still undesirable. A private activity of a lawyer can also be a subject for conflict of interest.
What are the effects of termination of relation?
Even if the attorney-client relationship has already been terminated, a lawyer cannot:
(1) Represent an interest adverse to or in conflict with the former client
(2) Do anything that will injuriously affect his former client
(3) Disclose or use any of the client’s confidence acquired in his previous relation
Can a lawyer be the the lawyer of the plaintiff, and at the same, also the lawyer of the defendant?
No. Even if the parties consented, the lawyer must still withdraw.
Can a lawyer represent a client, and the opposing party is his other client in an unrelated action, and both actions are still in hearing? Why or why not?
No. The lawyer will not be able to pursue the client’s claim against the other and to properly represent the latter in the unrelated action or if he can do so, he cannot avoid being suspected by the defeated client of disloyalty or partiality in favor of the successful client.
Can a lawyer represent a new client against a former client?
Generally, a lawyer is forbidden from representing a subsequent new client against a former client only when the subject matter of the present controversy is related, directly or indirectly, to the subject matter of the previous litigation in which he appeared for the former client.
If a member of a law firm is disqualified and forbidden from appearing for a certain client because of conflict of interes, will this prohibition apply to other members of the law firm?
If a lawyer in a law firm is disqualified or forbidden from appearing as counsel in a case because of conflict of interest, this will also apply to all of the members of the law firm. This is corollary to the rule that the employment of one member of a law firm is considered as an equivalent to a retainer of all its members.
