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ethics > conflict > Flashcards

conflict Flashcards

0
Q

conflict with current client defined

A

a lawyer must not represent a client if that representation will be in conflict with another client or be materially limited by the lawyers obligations to another client

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1
Q

8 types of conflict with clients

A 
business transactions
use of confidential information
aggregate settlements
gifts
literary and media rights
proprietary interests
opposing counsel relative
necessary witness
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2
Q

3 prong test for representing client where potential conflict exists

A
  1. must be able to provide competent, diligent representation
  2. must get informed consent of the client in writing
  3. representation not prohibited by law
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3
Q

business dealings with client conditions

A
  1. terms fair and reasonable
  2. written in a manner easily understandable for client
  3. client advised and given time to get independent legal advice
  4. informed consent in writing

*standard commercial transactions excepted

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4
Q

aggregate settlement requirements

A

all clients informed of the nature and extent of all claims

participation of each party in the settlement

all clients must give informed consent to the agreement

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5
Q

gifts from a client

A

a lawyer must not solicit a substantial gift from a client or prepare an instrument that bestows a substantial gift to a lawyer or the family member of the lawyer.

a lawyer may receive an unsolicited gift of substantial value from a client so long as there was no undue influence in obtaining the gift

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6
Q

book and media rights

A

a lawyer may not obtain any proprietary rights to the subject under litigation until the representation has concluded

It is permissible to obtain as a fee a percentage of an independent literary material that is the subject of the representation.

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7
Q

when it is permissible to disclose confidential information

6

A
  1. reasonably certain death or substantial bodily harm
  2. reasonably certain substantial financial harm to another
  3. obtain advice concerning an ethical matter
  4. comply with the law or court order
  5. implied authority to carry out representation
  6. informed consent
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8
Q

duty of confidentiality

A

prohibits disclosure of any information relating to the representation of the client, regardless of where it comes from.

information may not be disclosed or used to the detriment of the client

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9
Q

use of confidential information - summary

A

must not use confidential information to the detriment of the client unless unless exception applies

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10
Q

can a lawyer reveal a client confidence if it will subject the client to civil or criminal liability?

A

yes - a lawyer may reveal if it will establish a defense to a criminal or civil claim against the lawyer based on conduct of the client.

must wait for the assertion of misconduct but need not wait for the filing

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11
Q

exceptions to the Necessary Witness rule

A
  1. information relates to an uncontested matter
  2. information relates to the value and nature of services provided by the lawyer
  3. where withdrawal will result in substantial hardship for the client
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12
Q

lawyer as a necessary witness

defined

A

When a lawyer is the only person who can introduce the evidence in question, the lawyer should not represent the client unless exceptions apply.

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13
Q

prospective client screening rule (3)

A
  1. must take steps to avoid disclosure of more disqualifying information than reasonably necessary
  2. lawyer is timely screened from the representation
  3. given no part of the fee
  4. client is given timely notice in writing
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14
Q

3rd party conflicts rule (3)

A
  1. client gives informed consent in writing
  2. there is no interference with the lawyers professional judgement
  3. confidentiality of information is preserved
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15
Q

prospective client rule

A
  1. information obtained during preliminary discussions are protected
  2. may not be used against the prospective client in the same or substantially related matter
  3. may use information if informed written consent is obtained from the client and the prospective client
16
Q

non-confidential information communicated by prospective client

is there a concurrent conflict risk

A

if only non-confidential information is communicated during preliminary discussions, it does not create a concurrent client risk provided the information does not materially limit the attorneys responsibilities to the client

17
Q

when incompetent attorney may undertake representation

A

emergency exception

  1. referral to another attorney is not practical
  2. assistance should not exceed what is reasonably necessary to meet the emergency
18
Q

requirements for advanced waiver of conflicts

A
  1. client is an experienced user of the legal services involved
  2. reasonably informed of the risks
19
Q

requirements for prospective limitations on lawyers liability

A

client must be independently represented in order to enter into an agreement to limit an attorneys malpractice liability

20
Q

conditions for representing a current client against a former client

A
  1. may not use confidential information against a former client unless the information has been revealed, is otherwise discoverable, or is publicly known.
  2. issues in the representation are not substantially related to the prior representation
  3. if they are, former client gives informed consent in writing
21
Q

fee splitting requirements

lawyers not of the same firm

A
  1. proportionality - either of the following
    a. fee split in proportion to the work done
    b. fee split any other way provided attorneys take responsibility for the representation.
  2. client consents to the fee split, including share each lawyer receives in a writing.
  3. total fee is reasonale
22
Q

lawyer terminates association with a firm and the firm thereafter represents a client with interests materially adverse to the client of a formerly associated lawyer
(3) conditions

A
  1. client of former attorney is not currently a client of the firm
  2. matter is not the same or substantially related to the former representation
  3. no lawyer in the firm has information of the former client that is privileged or confidential
23
Q

former government attorney conflict requirements

A

may not represent client against government in a matter that the attorney worked personally and substantially for the government

actual hands on involvement in the exact same matter

if so, the government needs to provide informed consent in writing

24
Q

lawyer working with an organization serving persons with interests adverse to the clients of his firm

A
  1. may not participate in a decision or action incompatible to the obligations to his clients or would have a material adverse effect on the representation
25
Q

3 vicarious disqualification exceptions

A
  1. lawyer is a necessary witness
  2. disqualification is something personal to the lawyer
  3. if the screening rule applies
26
Q

screening rule for government service

A

lawyer is timely screened from the representation
given no part of the fee
government is given written notice of the situation

27
Q

reciprocal referral agreements between lawyers and non-lawyer professionals

A
  1. agreements are not exclusive
  2. should be of limited duration
  3. client is informed of the agreement
28
Q

permissive withdrawal

A
  1. will not cause undue hardship for the client
  2. reasonably belief that client is engaged in ongoing criminal activity or fraud
  3. lawyers services have been used to commit crime or fraud
  4. clients objectives are repugnant or imprudent
  5. would result in an unreasonable financial burden on the lawyer
  6. other good cause exists
29
Q

mandatory withdrawal required

A
  1. Attorney is fired
  2. continued representation will result in a knowing violation of the ethical rules or law
  3. lawyers mental or physical abilities are impaired so he can no longer exercise his duties
30
Q

former judges in private practice conflict

A

a former judge or adjudicative officer may not represent anyone in a matter in which he participated personally and substantially as a judge, law clerk, or arbitrator unless he receives informed consent

31
Q

representatrion of an organization and an individual of the organization

A

ordinary conflict rules apply

requires consent of the organization

consent must be given by someone other than the person to be represented

32
Q

when conflict arises between organization and its constituents

A

lawyer represents the organization not its constituents
Needs to warn parties that communications may not be protected by attorney-client privilege
when appropriate should advise person to seek legal council

33
Q

duty to report up within an organization

A

when a lawyer learns of conduct that are likely to cause substantial harm to an organization require reporting up the chain. Ultimately to the highest authority in the organization.
Where the highest authority fails to act in a timely and appropriate way, the lawyer may report relevant information outside of the organization that would otherwise be protected by the duty of confidentiality if it is reasonably necessary to prevent substantial harm to the organization.

34
Q

exceptions to the duty to report professional misconduct

A
  1. information gained while participating in a lawyer assistance program.
  2. involves disclosure of confidential or privileged information
35
Q

screening process for lawyer who changes firms

A

new firm will not be disqualified if:

  1. lawyer is screened from the representation and given no part of the fee.
  2. written notice is given to any affected former client to enable the client to monitor the screening process
    a. notice includes a statement of the screening procedure, statement of the firms compliance with the process and notice that review of a tribunal is an option
36
Q

screening notice provisions

A
  1. description of the screening process
  2. statement of the firm and the screened lawyers compliance with the process
  3. statement that review may be available before a tribunal
  4. an agreement to promptly respond to written inquiries and objections about the procedures

ethics (10 decks)

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