Conf. Current Client 4.1-7 Flashcards
What are 5 instances of current Conflict of Interest?
current poses same [DAM L]imits & Risks [Relations]
———–
1) Same or related matter
2) Directly Adverse interest
3) Materially Limits atty acting for each
4) subst Risk will occur
or
5) Related by blood, adoption, or marriage as a parent, child, sibling, or spouse.
How cure Conflict of Interest?
Informed Consent.
State 4 ways Conflict of Interest is a non-issue.
4-1.7 CONFL, CURRENT
1) None exists b/c Atty reasonably believes can give competent & diligent rep to each Client.
2) Rep is not prohibited by law.
3) No assertion of a position adverse to another Client in same case.
4) Written informed consent or stated on record.
Can related Attys have cases together?
No.
- Related by blood, adoption, or marriage as a parent, child, sibling, or spouse:
- Can’t go against each other w/o written consent.
———–
[Current poses Same DAM Risks & Limits Relations]
———-
What 2 things must Atty do to represent an insured?
4-1.7 CONFL, CURRENT
- Ascertain if he represents insured & his insurer or just insured.
- Advise both of extent of representation.
How do you know if representation wd be directly adverse?
[Directly Adverse? say L’Chaim, L’Chaim]
———–
1) Loyalty & Confidentiality compromised.
2) Limits Choices. i.e., can’t consider certain courses of action b/c impacts another Client.
If conflicted from a course of action, does that necessarily prevent the representation?
Hint: Who knows how to analyze a current conflict?
No. Depends on:
1) if affected client wants to Accommodate the other.
1) Likelihood.
2) Impact.
———–
~related~ What’s ALI’s analysis?
[Current poses Same DAM Limits & Risks Relations]
When can Atty NOT present antagonistic legal positions for 2 different Client’s in 2 different cases?
Before Appellate Court!
Give examples of when ‘special counsel’ is needed.
4-1.7 CONFL, CURRENT ----------- Interests conflict. 1) Insurer -- insured. 2) Corporation -- employee.
What can be considered when analyzing a conflict?
[ALI - accom, likehd, impact]
———–
Proximity & Degree. [think nature of cases, duration of rep, intimacy].
Ex. Negotiate on behalf of multiples w/:
a) Fundamentally antagonistic interests
vs.
b) Generally aligned.
How cd corporate Atty being on Bd of Directors pose a confict?
When called upon to give advise to corp on actions of Bd.
Who can question conflict?
4-1.7 CONFL, CURRENT
1) Court can when infers neglect.
2) Opposing counsel in criminal matters.
How might a conflict arise if there’s no conflict, re: client?
4-1.7 CONFL, CURRENT ----------- A conflict b/w Attys. ----------- If each firm has Atty related by blood, adoption, or marriage as a parent, child, sibling, or spouse.
If a Firm’s atty has a conflict, will the entire Firm be conflicted?
No.
<>not sure this is right<>
Can 2 Attys related by blood, adoption, or marriage as a parent, child, sibling, or spouse have a case?
No UNLESS written consent of clients.
In any conflict, in addition to getting informed consent, what must Atty do for his Client?
Counsel on the conflict w/ pros & cons.
In sum, state the 3 ways 4-1.7 Conflict Current Client, finds conflict?
Current poses Same DAM Limits & Risks Relations
————
(1) C’s interests are directly adverse or
(2) One cd limit Atty in other.
(3) Related by Bld Adop Marr as Par, Chi Sib, or Sp.
BUT Informed Consent cures.
Who ties the jingles together that summarize Current Client Conflict in a nutshell.
How analyze current conflict?
Ask ALI [accom, likelihood, impact.]
———–
What’s ALI’s analysis?
Current poses Same DAM Limits & Risks Relations.]
———–
— Same matter — Dir Adv — Mater Limits — Related
— Accommodate—-Likelihood - Impact
Distinguish the jingles for Bar Ethics Current Client conflict v. Former Client conflict.
ALI says Current poses Same DAM Limits & Risks Relations
Former is a SMURF
———–
CURRENT: Dfn. - Accom, Liklhd, Impact
Same or related case, Directly Advers, Materially Limits, Subst Risk, Related.
———–
FORMER: Use info vs. Former. New has Materially Adverse interest; Reveal Former’s Info, Switch teams.
