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Legal Professionalism > Concurrent conflicts of interest > Flashcards

Concurrent conflicts of interest Flashcards

1
Q

Basic Rules

A
  1. 7 basic conflict rule
  2. 8 personal conflicts
  3. 9 former clients
  4. 10 imputation
  5. 11 government lawyers
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2
Q

Types of conflicts

A

Concurrent conflicts
Successive conflicts
Imputed conflicts

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3
Q

Concurrent conflicts

A

Conflicts with current clients

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4
Q

Successive conflicts

A

Conflicts with former clients

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5
Q

Imputed conflicts

A

Conflict for one lawyer can conflict out a whole law firm

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6
Q

Rule 1.10 Imputation of Conflict

A

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.

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7
Q

Business Conflicts/ Positional Conflicts

A

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.

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8
Q

Rule 1.7 Current Clients

A

No representation if

  1. Representing one client is adverse to another.
  2. 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.
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9
Q

Exceptions to 1.7

A
  • 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.
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10
Q

Advocate witness rule

A

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.

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11
Q

Businesses under conflict

A

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.

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12
Q

Note about the differences between 1.7 (current) and 1.9 (former)

A

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.

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13
Q

Punishment for conflicts

A
  • Possible but rare to have criminal prosecution.
  • Malpractice suit
  • Discipling for conflict.
  • Sanctions
  • Strike pleadings
  • Disqualification from litigation
  • Fee disgorgement
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14
Q

Fee disgorgement

A

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

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15
Q

Standard for determining the existence of a conflict

A

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.

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16
Q

Client-lawyer conflicts R.1.8

A

Cannot enter into business transactions with client or knowingly acquire a pecuniary interest adverse to the client unless:

  1. It is done under fair and reasonable circumstances as determined by an ethics committee
  2. Written and informed consent signed by the client whereby the lawyer lays out the terms and the lawyer’s role
  3. Written advice for the client to get another lawyer
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17
Q

Concurrent Conflicts test

A

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?

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18
Q

Requirements for 1.8

A
  1. Must prove that the deal is fair and reasonable
  2. Then, client has the opportunity to get a second opinion
  3. Then obtain the written consent of the client.
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19
Q

Does 1.8 prohibit certain transactions?

A

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.

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20
Q

Who has the burden of proving fairness in these transactions?

A

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.

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21
Q

Neville case (acquiring interests in real property)

A

Whenever a lawyer knowingly acquires an ownership interest adverse to his client, the client must be given the opportunity to seek independent legal advice

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22
Q

Consequences of entering into a business agreement with a client

A
  • 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
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23
Q

Media Rights 1.8d

A

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.

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24
Q

Post representation media rights

A

All bets are off after the representation.

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25
Q

Rule 1.8 relating to financial interests

A

A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation except that:

  1. a lawyer may advance court costs and expenses, the repayment of which may be contingent on the outcome of the matter; and
  2. a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
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26
Q

What can an attorney not fund

A
  1. Medical and living expenses
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27
Q

Can the costs be waived?

A

No

28
Q

Mid-stream changes to fee arrangement

A

Subject to 1.8a scrutiny

- must tell the client to bring in an outside lawyer to assess. Put everything in writing.

29
Q

Can a fee paid by another party?

A

Yes, but only if the client consents. The payer cannot interfere with the lawyer’s independent judgment and confidentiality.

30
Q

Ex. of fee payor interests

A

Insurance company hires you to defend someone. You client is not the insurance company.

31
Q

Relationship of lawyers and significant others R.1.7

A

You must disclose personal relationships concerning opposition to your client. This is a PERSONAL not imputed conflict. The firm does not have to drop the case but you do.

32
Q

Burden of proof on conflict with family

A

No presumption of impropriety.

33
Q

Other relationships (dating)

A

Does not require disclosure.

34
Q

Lawyer’s legal exposure

A

A conflict may exist where representation of a client could lead to info implicating the attorney in a crime or exposing the attorney to civil liability.

35
Q

Internal investigation of a firm

A

as a firm does an internal investigation, none of the privileges will cover this information. It is doing work on behalf of the client so there is dual representation.

36
Q

In house counsel investigations of lawyer error

A

In house counsel represents the firm and not the lawyer. In house counsel represents the firm and not the lawyer. A firm getting outside counsel is not a violation of confidentiality.

37
Q

Client-Client Conflicts

A
  1. 7 A lawyer shall not represent a client if the rep of that client will be directly adverse to another client, UNLESS
    - the lawyer reasonably believes that the representation will not adversely affect the relationship with the other client AND
    - each client consents after consultation
38
Q

What if a lawyer might be materially limited by the L’s responsibilities to another client

A

Cant rep UNLESS:

  • the lawyer reasonably believes the representation will not be adversely affected; and
  • the client consents after consultation
39
Q

What are the requirements for a waiver

A

Reasonable belief by the attorney that he can zealously represent both interests and a knowing consent by the affected parties
THEN get consent in writing

40
Q

Settlements and conflict

A

An attorney may not represent two clients when a settlement offer made to one is contrary to the interests of the other
Loyalty to a client is limited when an L cannot recommend a possible course of action due to loyalty to another client.

41
Q

Imputed Conflicts

A

All conflicts are imputed to a firm unless they are personal conflicts

42
Q

Who has standing in a conflict

A

SPLIT:
Some courts say only the client. Others a non-client would have standing only if he can demonstrate that opposing counsel’s conflict somehow prejudiced his interests and rights.

43
Q

Factors in weighing conflict

A 
Lawyer's actions vs firms actions
Definition of adverse
Who is the client
Definition of unrelated
Can the client waive future coflicts - no
44
Q

Remedies

A

Disqualification
Discipline
Civil liability

45
Q

Issues in Confidentiality and privilege in joint defense

A

Dual loyalties; requests for non disclosure

46
Q

Dual loyalties

A

more than one client on the same issue
need to do balancing test
- if client a tells you information what controls? Your duty of loyalty to a or your duty to inform b of what a says.

  • the more related what a tells you is to the issue at hand, the more your duty to inform to b trumps, the less related it is, the more your duty to a controls
47
Q

Requests for nondisclosure - What if a expressly asks you not to say anything to b

A

Split
NY - you must withdraw
Rst - you have to tell the other client that the other client told you to remain quiet. Cant just walk away.

48
Q

General rule with conflicts and joint representation

A

when an attorney acts for two or more parties having a common interest, neither party may exercise that A-C privilege in subsequent controversy with the other.

49
Q

Exception to above

A

Common interest exception

50
Q

Can one client waive confidence?

A

No - must be unanimous

51
Q

Is an A-C relationship necessary for a duty of confidentiality?

A

No, may simply owe a fiduciary duty.

Ex: Lawyer reps buyer and seller but does not have a lawyer.

52
Q

Steps for determining consent

A
  • Is there a conflict?
  • If Yes, can lawyer reasonably continue the relationship and give good rep to the client?
  • If yes, can lawyer get consent from client?
53
Q

Factors for consentibillity

A 
Sophistication of the client
Specificity of the info
Adequacy of time
Another lawyer
Explain
54
Q

Advance consent

A

ABA: you can get consent in advance IF it is equivalent to the consent you would have gotten later.

55
Q

Unique A-C relationships

A

In a concurrent conflict, the relatedness of matters makes no difference. However, it sneaks back in when the LC relationship itself is tenuous.

56
Q

If the entity is a member of a trade association, do you rep every member of the trade association?

A

Some courts say that if you represent the trade association then you represent every member of the trade association as long as it is the same topic.

57
Q

Gleuck case

A

P hires firm a against D. Firm A represented trade association of which D is a member. Held: adverse party is merely a vicarious client

58
Q

DQ for trade association

A

Ordered only if:

  1. the subject matter of the suit is sufficiently related to the scope of the matters
  2. on which the firm represents the association as to create a realistic risk that either the P will not be represented properly OR
  3. D will be taken unfair advantage of
59
Q

Business HYPO

A

bottom of 20 remember this

60
Q

Waiver of future conflicts

A

If no advance consent, and problem with business arises then the lawyer must withdraw. To get consent:

  • draft document that is in language that they understand, AND
  • is signed by them, AND
  • included in the letter is that you want them to take the letter of engagement to outside counsel for review AND tell them that if there is a conflict that you no longer represent them.
61
Q

Relation back theory

A

Even though technically after the corporation is farmed you only represent the corporation, you still need to do the separate conflict searches for each party.

62
Q

The insurance triangle

A

Who is the client: the injured person and not the people paying you.
Lawyer must be independent of the insurance company who is paying him to represent the client.

63
Q

Advocate-witness rule

A

Rule 3.7. Can be a witness if it is a ministerial point (not a fact in controversy). Also depends on how likely you are to be called as a witness.

64
Q

Is there imputation with lawyer being called as witness?

A

No

65
Q

Criminal cases and A-W rule

A

Rule has been applied to defense counsel notwithstanding the D’s willingness to waive counsel’s testimony.
Applies to prosecutors:
- this eliminates the risk that a testifying prosecutor will not be a fully objective witness given that he is an advocate for the gov
- her credibility as a witness is enhanced because she is a gov prosecutor
- dual roles might create confusion as whether the lawyer is speaking as an advocate or as a witness

Legal Professionalism (5 decks)

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