Chapter 11 Flashcards
Former & Prospective Clients
Both are treated like clients when it comes to ____ or ____ information.
USING
REVEALING
Corporate Families
Model Rule 1.7, comment 34
Some circumstances might make the affiliate, as well as the represented entity, the client of the lawyer. These include:
(1) significant control of the nonclient by the client;
(2) financial loss or benefit to the nonclient that will have a direct, adverse impact on the client; and
(3) disclosure of confidential information of the nonclient entity. Any or all of these might suffice to create an implied client-lawyer relationship with the affiliate.
Model Rule 1.9(a)
looks at the individual lawyer
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the ______________ in which that person’s interests are materially adverse to the interests of the former client unless ______.
same or a substantially related matter
the former client gives informed consent, confirmed in writing
Model Rule 1.9, Comment [3] explains:
Matters are “substantially related” for purposes of this Rule if what?
they involve the same transaction or legal dispute .
confidential factual information
But Model Rule 1.9, Comment [3] goes on to describe another category of “same or substantially related matters”:
or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would what?
materially advance the client’s position in the subsequent matter.
Organizations
Model Rule 1.9, Comment [3]:
In the case of an organizational client, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation; on the other hand, _________ ordinarily will preclude such a representation.
knowledge of specific facts gained in a prior representation that are relevant to the matter in question
Does “matter” refer only to litigation?
Clearly no. Both the Model Rule and the comments say as much.
Model Rule 1.9(b)
looks at lawyer’s former law firm
A lawyer shall not knowingly represent a person in the ____(4)____ matter in which a firm with which the lawyer formerly was associated had previously represented a client:
whose interests are _____(3)____ to that person; and
about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter;
unless what?
same or a substantially related
materially adverse
the former client gives informed consent, confirmed in writing
Model Rule 1.9(b):
Paragraph (b) operates to disqualify the lawyer only when the lawyer involved has __(2)____ of information protected by Rules 1.6 (confidentiality) and 1.9(c)(using or revealing confidential information).
actual knowledge
Model Rule 1.9(c)
Duties To Former Clients: Formerly represented clients shall be treated like current clients when it comes to what?
using or revealing information
Model Rule 1.10(a)
looks at disqualified lawyer’s new firm
While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 (general conflicts rule) or 1.9 (duties to former clients),
unless
the prohibition is based on a ___(2)___ of the lawyer and does not present a ____(7)_______ of the client by the remaining lawyers in the firm;
the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, and prohibition based on personal interest.
personal interest
significant risk of materially limiting the representation
So a lawyer with a conflict caused by his association with a prior firm, may be screened by his new firm, but only if: name five things.
The screened lawyer gets no fee or profits from the representation;
Written notice is given to affected clients, including:
a description of the screening procedures;
a statement of the firm’s compliance;
an agreement to respond inquiries.
Lawyer and firm provide certifications of compliance with the screening procedures.
Model Rule 1.10(b)
looks at the disqualified lawyer’s former firm
When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless what?
(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.
Model Rule 1.10(c)
Even if lawyers are unable to screen their way around a conflict, they may avoid disqualification under the Rule by obtaining a what from the affected clients obtained with the client’s informed consent confirmed in writing?
waiver
Model Rule 1.11(a)
For former government lawyers, now in private practice.
Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government:
(1) is subject to _____; and
(2) shall not otherwise represent a client in connection with a matter in which the lawyer participated _________ as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
Rule 1.9(c)
personally and substantially
