Concurrent conflicts of interest Flashcards
Basic Rules
- 7 basic conflict rule
- 8 personal conflicts
- 9 former clients
- 10 imputation
- 11 government lawyers
Types of conflicts
Concurrent conflicts
Successive conflicts
Imputed conflicts
Concurrent conflicts
Conflicts with current clients
Successive conflicts
Conflicts with former clients
Imputed conflicts
Conflict for one lawyer can conflict out a whole law firm
Rule 1.10 Imputation of Conflict
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 or 1.9, UNLESS the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materiality limiting the representation of the client by the remaining lawyers of the firm.
Business Conflicts/ Positional Conflicts
Business conflict: representing Coke and Pepsi
Positional Conflict: taking different positions on the law in different representations
Lawyer does not have to apologize for these representations.
Rule 1.7 Current Clients
No representation if
- Representing one client is adverse to another.
- There is a significant risk that one representation will be materially limited by other duties to another client, former client, third person, or personal interest of lawyer.
Exceptions to 1.7
- A lawyer can still represent if the lawyer reasonably believes that he can provide competent and diligent representation to each affected client.
- representation is not prohibited by law.
- the representation doesn’t involve two clients on opposing sides in same litigation (inherent conflict); AND
- each affected client gives informed consent that is confirmed in writing.
Advocate witness rule
when the lawyer is called as a witness by either side. Rule 3.7 seeks to avoid the lawyer’s interest in being an advocate and the interest of the client, the adversary, or the system of justice in having the lawyer testify.
Businesses under conflict
Conflicts can develop if the lawyer is deemed to represent both the entity and its agents.
The entity could be a corporation, partnership, labor union, trade association, or a government entity.
Note about the differences between 1.7 (current) and 1.9 (former)
R.1.9 does not have a reasonableness caveat to former client’s consent. Under 1.9 the lawyer does not need to reasonably believe that he will be able to provide competent representation.
Punishment for conflicts
- Possible but rare to have criminal prosecution.
- Malpractice suit
- Discipling for conflict.
- Sanctions
- Strike pleadings
- Disqualification from litigation
- Fee disgorgement
Fee disgorgement
If a court can find that a lawyer was acting with a conflict the basic duty of loyalty has been breached and the attorney must return all fees. The client does not have to show any conflict just fees
Standard for determining the existence of a conflict
The rules consistently refer to a lawyer’s ability to give independent legal advice as the standard. If there is any indication that the attorney’s perspective or independence is being skewed then there is a conflict.
Client-lawyer conflicts R.1.8
Cannot enter into business transactions with client or knowingly acquire a pecuniary interest adverse to the client unless:
- It is done under fair and reasonable circumstances as determined by an ethics committee
- Written and informed consent signed by the client whereby the lawyer lays out the terms and the lawyer’s role
- Written advice for the client to get another lawyer
Concurrent Conflicts test
Is there a conflict?
1. Is it directly adverse
2. Is there significant risk that the representation will be materially affected
Is consent adequate?
1. Does the attorney reasonably believe that the attorney can give independent legal advice?
2. Did the client give the informed consent in writing?
Requirements for 1.8
- Must prove that the deal is fair and reasonable
- Then, client has the opportunity to get a second opinion
- Then obtain the written consent of the client.
Does 1.8 prohibit certain transactions?
Yes, 1.8(a)(2) prohibits certain transactions between a lawyer and a client unless the client is given a reasonable opportunity to seek the advice of independent counsel.
- The attorney does not have to advise the client on the independent counsel.
Who has the burden of proving fairness in these transactions?
The burden of proving fairness is generally on the attorney. Even if the client is sophisticated, this is not a defense because of the attorney’s fiduciary duty.
Neville case (acquiring interests in real property)
Whenever a lawyer knowingly acquires an ownership interest adverse to his client, the client must be given the opportunity to seek independent legal advice
Consequences of entering into a business agreement with a client
- 1.8a can void an agreement with its lawyer.
- even if everyone benefits, it is not a defense
- partners must regularly disclose investments to each other to avoid conflicts
Media Rights 1.8d
Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
Post representation media rights
All bets are off after the representation.
Rule 1.8 relating to financial interests
A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation except that:
- a lawyer may advance court costs and expenses, the repayment of which may be contingent on the outcome of the matter; and
- a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
What can an attorney not fund
- Medical and living expenses