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
Model Rule 1.11(b)
Also for former government lawyers, now in private practice.
(b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless what?
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
Model Rule 1.11(c)
Also for former government lawyers, now in private practice.
Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is ___(3)____ about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are ____ to that person in a matter in which the information could be used to the material disadvantage of that person.
confidential government information
adverse
Model Rule 1.11(c)
As used in this Rule, the term “confidential government information” means _________, at the time this Rule is applied, _______.
information that has been obtained under governmental authority and which
the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public
Model Rule 1.11(c)
A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is ____ _____ from any participation in the matter and is apportioned no part of the fee therefrom
timely screened
Model Rule 1.11(d)
For current government officers and employees, formerly in private practice
Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer ________, unless the appropriate government agency gives its informed consent, confirmed in writing; or
(ii) ______________ with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
participated personally and substantially while in private practice or nongovernmental employment
negotiate for private employment
Model Rule 1.11(e)
(e) As used in this Rule, the term “matter” includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.
Model Rule 1.18
Duties To Prospective Clients
Model Rule 1.18(a)
A person who ____ with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
consults
Whether communications, including written, oral, or electronic communications, constitute a consultation depends on what?
the circumstances
Model Rule 1.18(c)
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer _______, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
received information from the prospective client that could be significantly harmful to that person in the matter
Model Rule 1.18(d)
When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) ______ have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took _______ to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is ___ ____ from any participation in the matter and is _____; and ______ (ii) .
both the affected client and the prospective client
reasonable measures to avoid exposure
timely screened
apportioned no part of the fee therefrom
written notice is promptly given to the prospective client
