Conf. Imputed Conf. 4-1.10 Flashcards
By way of reminder -
In what 2 instances MUST Atty disclose confidential info?
4-1.6 CONFIDENTIALITY ------------ To prevent: (1) Crime (2) Subst bodily harm or death to another.
By way of reminder -
In what 3 instances MAY Atty disclose confidential info?
[May Disclose to Serve + Comply w/ a Defense]
———–
1) Serve Client’s interest UNLESS Client specifically requires it not be disclosed.
2) Comply w/ Bar Rules.
3) establish Atty’s Defense/claim/response in:
(a) Dispute w/ Client.
(b) Criminal/civil charge based on Client-involved conduct;
(c) Proceeding re: Atty’s representation of Client.
By way of reminder -
State 3 ways 4-1.7 Conflict Current Client, finds conflict?
[Current poses Same DAM Limits & 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..
BUT Informed Consent cures.
By way of reminder-
State 4 ways 4.1-9 Conflict Former Client, finds conflict?
CONFLICT FORMER ----------- Your former is a SMURF. ----------- *Basically Atty wd have an advantage* ----------- 1. Use info for former's disadvantage. 2. new Client in related matter w/ Materially Adverse interest to former. 3. Reveal former's info. 4. Switch teams & work with same players. UNLESS Former consents.
Is entire Firm blocked from representing Potential C if 1 Atty has either of the following 2 conflicts:
1) Current C [currently has a C w/ materially adverse int to Potential C]
2) Former C [cd use Former’s info to Former’s disadvant]
—
Why no 4-1.6 Confid, as in blocking Firm w/ new Atty
Yes.
If 1 Atty has Current C or Former C conflict, Whole Firm is out UNLESS no significant risk of materially limiting remainder of Firm.
What is the exception that permits Whole Firm to represent Potential C on which 1 Atty has a Current C or Former C conflict?
BASIC FIRM RULES ----------- Conflict is based on Atty's personal interest w/ no significant risk of materially limiting remainder of Firm. ----------- *seems unlikely?*
Lawyer joins New Firm. Is New Firm blocked from representing Potential C if Atty has any of the following 3 conflicts -
1) 4-1.7 Current C.
2) 4-1.9 Former C.
3) 4-1.6 Confidentiality.
—
* Notice here we are concerned about confidential info.
Not a concern in basic Firm/existing Atty.*
Yes. hey New, NO CRIMeS by U
———–
At his new firm, atty shdn’t wear ASICs
SNO in MAI URCs me
———–
New Firm cannot represent Potential C if
1) new atty OR HIS OLD FIRM represented an Adversary of potential c
2) in Same or related matter
3) adversary had Interests materially adverse to potential c
4) adversary shared Confidential info w/ new atty.
Essentially, New Atty can’t share all the knowledge gained about Adversary to the advantage of Potential Client.
Atty Goner leaves Old Firm where he represented Old C. Can Old Firm represent Adversary of Old C?
Old folks Can be Materially Adverse Except when Remaining on a CRUS.
———–
Old Firm CAN represent Adversary of Old C w/ interests adverse to Old C
SO LONG AS:
1) Matter is not same or substantially related
2) Remainder of Firm have no confidential info
What’s the key difference b/w basic Firm rules, New Firm rules & Old Firm rules?
In Whole Firm & New Firm, the Atty w/ the conflict works for them.
———–
In Old Firm Atty w/ the conflict is gone. Old Firm can move forward so long as remainder has no confidential info & matters are different.
If a Firm Atty’s conflict has disqualified all of his Firm, can the disqualification be waived?
Yes. As in Current C can get informed consent by affected party.
Why wd conflict of 1 Atty in the Firm, disqualify all?
Loyalty to the client by all Attys in Firm.
Firm = 1 Atty
Operates only among Attys currently in Firm.
When does the Whole Firm scheme allow the lawyers to represent a party?
When there is no question of loyalty or preserving confidential info.
Ex. paralegal has conflict. just move him to another client.
What are the concerns when analyzing Atty on the move?
Preserving confidentiality &
Avoiding positions adverse to a client.
Which scenarios apply when Atty moves?
New Firm & Old Firm.
Who has the burden to prove wh/ conflict exists?
The Firm being disqualified.
What look for to determine if confidentiality might be breached?
Access to info. Not all attys have universal access. Partners perhaps.
When analyzing confidentiality, is the atty’s access to info assumed?
Yes.
Prior to Atty asking for informed consent, what does he first have to analyze?
Check boxes of 4-1.7(b):
(1) Atty believes able to provide competent & diligent representation to each Client;
(2) Rep not prohibited by law;
(3) Rep does not assert position adverse to
another Client when Atty represents both Clients in the same proceeding before a tribunal; &
(4) Each Client gives informed consent
(a) Writing
(b) On record.
What is meant by ‘assert a position adverse to Client.’
Key is that the prohibition is tied to Same or Related Matter.
Atty wd be advocating against his own Client in same or related matter.
———–
Akin to criminal atty representing 2 defs blaming each other
What are responsibilities of Old Firm when Goner goes?
Old folks CAN be Materially Adverse except when Remaining on a CRUS.
What are responsibilities of New Firm when Goner joins?
hey New, NO CRIMeS by U
————
Confid, Reveal, Interest, Material, Old or New, Use
———–
if Old or New Confid, Reveal, Interest Materially adv, Same, Use
When are screens used?
IMPUTED CONF.
- 1-11 Govt Conf.
- 1-12 Judge Conf
- 1-18 Prospective.
What are the 2 screens in Govt.
IMPUTED CONF. ----------- New Private Atty is a SPUR: Subt + Person, Use + Reveal. ------------ 2 screens: Based only on SPUR: screen atty + $ + tell govt. Based on having confid info: screen atty + $
What is the screen in Judge?
Screen Ex-Judge + $ + tell client.
