Concurrent Conflicts in Civil Litigation, Conflicts Involving Former and Prospective Clients - June 20 Flashcards
Under the MRPC, what is the definition of a prospective client? (Q)
Under the MRPC, a prospective client is a person who consults with a lawyer about potentially forming a client-lawyer relationship with respect to a legal matter.
Whether a communication is a consultation will depend on the circumstances. In broad terms, a person who communicates with a lawyer about a matter at the lawyer’s invitation, and without clear advance warnings about any restrictions on the potential relationship, has consulted the lawyer. On the other hand, a person who unilaterally sends information to a lawyer in response to general lawyer advertising has not consulted the lawyer.
Is a lawyer restricted from using information learned from a prospective client? (Q)
Yes. A lawyer who has learned information from a prospective client may not use or reveal that information except to the same extent allowed with respect to a former client’s information. In other words, the lawyer may not use that information to the disadvantage of the prospective client, unless (1) the rules of professional conduct would permit or require it with respect to a client, or (2) the information has become generally known. Nor may the lawyer reveal that information except to the extent authorized by the rules of professional conduct.
In considering whether to take on a representation, should a lawyer limit the scope of the initial consultation with the prospective client to avoid acquiring potentially disqualifying information? (Q)
Yes. A lawyer who is considering whether to take on a representation should limit the initial consultation to the information reasonably needed to assess whether the lawyer wishes to do so or would have a conflict of interest. As soon as it appears that the lawyer will not take on the representation, the lawyer should either inform the prospective client of the reason for declining or simply decline the representation.
What does it mean to screen a lawyer from participating in a matter within a law firm? (Q)
To screen a lawyer from a matter means that the law firm will isolate the lawyer from any involvement with the matter as a way to avoid a conflict of interest. Effective screening requires the firm to use timely procedures that are reasonably adequate to protect information possessed by the isolated lawyer. In other words, the purpose of screening is to prevent the screened lawyer from revealing client confidences or other protected information.
The exact procedures needed for screening may vary, but at a minimum the screened lawyer and any lawyers in the firm who are working on the matter should be informed of the need for screening and the procedures that will be applied.
If a lawyer receives information from a prospective client that could be significantly harmful to that person in a matter, is the lawyer generally permitted to represent a client with materially adverse interests to the prospective client in the same or a substantially related matter? (Q)
No. In general, if a lawyer receives information from a prospective client that could be significantly harmful to that person in a matter, the lawyer may not represent a client with materially adverse interests to that prospective client in the same or a substantially related matter. This rule also applies to the lawyer’s firm.
However, this rule does not apply if:
both the affected client and the prospective client give written, informed consent to the representation; or
the lawyer who received the potential client’s information took reasonable steps to limit the information to what was reasonably necessary to decide whether to represent the prospective client, the lawyer is screened from the matter and receives no part of the fee, and written notice is given to the prospective client with a description of the subject of the consultation and the screening measures used.
Before meeting with a prospective client, may a lawyer condition the meeting on the prospective client’s informed consent that no information provided by the prospective client will restrict the lawyer from representing a different client in the matter? (Q)
Yes. A lawyer is permitted to place a condition on a consultation with a prospective client requiring the prospective client to give informed consent that no information the prospective client provides during the consultation will restrict the lawyer from representing a different client in the matter. The lawyer may also request the prospective client’s express informed consent for the lawyer’s subsequent use of information received from the prospective client, even though use of that information is otherwise prohibited by the rules of professional conduct. If the prospective client does not want to agree to the lawyer’s conditions, the prospective client may choose not to have the consultation with the lawyer.
A lawyer met with a man to discuss the lawyer’s possible representation of the man in a divorce matter. During the meeting, the man informed the lawyer that he was engaged in a long-term extramarital affair. The man decided not to retain the lawyer. The man’s wife then consulted with the lawyer about representing her in the same divorce proceeding. The man vigorously objected to the lawyer representing his wife. Both the man and the wife were prospective clients as defined by the MRPC.
May the lawyer represent the wife in the divorce proceeding? (Q)
No. The lawyer may not represent the wife. If a lawyer receives information from a prospective client that could be significantly harmful to that person in a matter, the lawyer generally must not represent a client with materially adverse interests to the prospective client in the same or a substantially related matter. One exception to this rule is if the prospective client and the new client give informed consent to the representation.
Here, the man and his wife had materially adverse interests in the divorce matter. The man (a prospective client) told the lawyer about his affair, which is significantly harmful information to the man in the matter. The man did not consent to the lawyer representing his wife; rather, he objected. Thus, the lawyer may not represent the wife.
In general, if lawyers are associated in a firm, may any of them knowingly represent a client if any one of the lawyers practicing alone would be prohibited from doing so because of that lawyer’s duty to former or current clients? (Q)
No. In general, no lawyer in a firm may knowingly represent a client if any one of them alone would be prohibited from doing so because of a duty to former or current clients. There are two exceptions to this prohibition, which allow representation if:
the disqualification is based on a lawyer’s personal interest and does not present a significant risk of materially limiting representation by the firm’s other lawyers, or
the basis of the disqualification is a lawyer’s duty to a former client and arises out of the lawyer’s association with a prior firm.
If the second exception applies, the firm must screen the disqualified lawyer from participation in the matter and ensure that he receives no part of the corresponding fee. In addition, affected former clients must be provided written notification of these steps and certifications of compliance with the ethical rules and screening procedures.
If a law firm takes on a representation that one of the firm’s lawyers would be prohibited from taking because of that lawyer’s duty to a current or former client, what must be included in the written notice provided to any affected former client to allow that client to ascertain the firm’s compliance with the rules of professional conduct? (Q)
If a law firm takes on a representation that one of the firm’s lawyers would be prohibited from taking because of that lawyer’s duty to a current or former client, the written notice provided to any affected former client must include:
a description of the procedures used to screen the disqualified lawyer from participating in the matter,
a statement of the firm’s and of the screened lawyer’s compliance with the rules of professional conduct,
a statement that review may be available before a tribunal, and
an agreement by the firm to respond promptly to any written inquiries or objections by the affected former client about the screening procedures.
This written notice requirement is intended to demonstrate to any affected former clients that the representation will not harm their interests.
After a lawyer has terminated an association with a firm, under what circumstances is the firm prohibited from representing a client with interests materially adverse to those of a client represented by the formerly associated lawyer? (Q)
After a lawyer has terminated an association with a firm, the firm is not prohibited from representing a client with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm unless:
the matter is the same as or substantially related to the matter in which the formerly associated lawyer represented the client, and
any lawyer remaining in the firm has information material to the matter that is protected by the lawyer’s duty to maintain confidentiality.
However, the affected client may provide informed consent to the representation.
While a lawyer worked at a law firm, she represented a contractor in a construction dispute against a builder. During the representation, the lawyer left the firm and continued to represent the contractor in the dispute. Several lawyers who had worked on the dispute remained at the firm and retained confidential information material to the matter. The builder then asked the firm to represent him in the dispute. The contractor was unwilling to consent to this representation.
May the firm take on the representation of the builder? (Q)
No. The firm may not represent the builder. Without the affected client’s informed consent, a firm may not represent a new client with interests materially adverse to those of a client represented by a lawyer formerly at the firm if:
the matter is the same as or substantially related to the matter in which the formerly associated lawyer represented the client, and
any lawyer remaining in the firm has material information that is protected by the lawyer’s duty to maintain confidentiality.
Here, the construction dispute is the same matter in which the lawyer represented the contractor while the lawyer was at the firm, and the builder’s interests are materially adverse to the contractor’s. Many lawyers who remained at the firm have material information protected by the duty of confidentiality. The contractor did not consent to the representation. Thus, the firm may not represent the builder.
In general, may a lawyer acquire a proprietary interest in a cause of action or litigation in which the lawyer represents the client? (Q)
No. In general, a lawyer who is conducting a litigation for a client is prohibited from acquiring a proprietary interest in the cause of action or the subject matter of the litigation. This rule is to prevent the lawyer from acquiring too great an interest in the matter, which could create a conflict of interest for the lawyer and make it difficult for the client to fire the lawyer if the client wishes. This rule applies both to an individual lawyer and to all lawyers in that lawyer’s firm.
There are two exceptions to this rule:
a lawyer may acquire an attorney’s lien as authorized by law to secure the lawyer’s fee or expenses, and
a lawyer and client in a civil case may form a contract for a reasonable contingent fee.
A lawyer was representing a client in a lawsuit regarding injuries the client sustained in a car accident. The client did not have the funds to pay for the costs of litigation. At the outset of the representation, the lawyer agreed to pay the litigation costs. The lawyer and client agreed that if the client won the litigation, the lawyer would receive 10 percent of any damages awarded to the client in addition to the reasonable costs of litigation the lawyer expended on behalf of the client. If the client lost, the lawyer would not recoup his litigation expenses.
Has the lawyer violated his ethical duties by setting up this payment structure? (Q)
No. The lawyer has not violated his ethical duties. Although a lawyer generally may not acquire a proprietary interest in a cause of action or the subject matter of a litigation the lawyer is conducting for a client, one exception to this rule is that a lawyer and client may agree to a reasonable contingent fee in a civil case. Furthermore, though a lawyer is generally prohibited from providing financial assistance to a client in connection with pending or contemplated litigation, a lawyer may advance the client court costs and litigation expenses with repayment contingent on the outcome of the matter.
Here, the lawyer agreed to advance the expenses and take a 10 percent contingent fee if the client won the case. The lawyer is permitted to advance the expenses in this manner, and a 10 percent contingent fee is very likely reasonable. Thus, the lawyer has not violated his ethical duties.
