conflict

Question 0

conflict with current client defined

Answer 0

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

Question 1

8 types of conflict with clients

Answer 1

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

Question 2

3 prong test for representing client where potential conflict exists

Answer 2

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

Question 3

business dealings with client conditions

Answer 3

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

Question 4

aggregate settlement requirements

Answer 4

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

Question 5

gifts from a client

Answer 5

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

Question 6

book and media rights

Answer 6

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.

Question 7

when it is permissible to disclose confidential information

6

Answer 7

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

Question 8

duty of confidentiality

Answer 8

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

Question 9

use of confidential information - summary

Answer 9

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

Question 10

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

Answer 10

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

Question 11

exceptions to the Necessary Witness rule

Answer 11

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

Question 12

lawyer as a necessary witness

defined

Answer 12

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

Question 13

prospective client screening rule (3)

Answer 13

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

Question 14

3rd party conflicts rule (3)

Answer 14

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

Question 15

prospective client rule

Answer 15

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

Question 16

non-confidential information communicated by prospective client

is there a concurrent conflict risk

Answer 16

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

Question 17

when incompetent attorney may undertake representation

Answer 17

emergency exception

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

Question 18

requirements for advanced waiver of conflicts

Answer 18

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

Question 19

requirements for prospective limitations on lawyers liability

Answer 19

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

Question 20

conditions for representing a current client against a former client

Answer 20

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

Question 21

fee splitting requirements

lawyers not of the same firm

Answer 21

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

Question 22

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

Answer 22

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

Question 23

former government attorney conflict requirements

Answer 23

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

Question 24

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

Answer 24

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

Question 25

3 vicarious disqualification exceptions

Answer 25

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

Question 26

screening rule for government service

Answer 26

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

Question 27

reciprocal referral agreements between lawyers and non-lawyer professionals

Answer 27

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

Question 28

permissive withdrawal

Answer 28

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

Question 29

mandatory withdrawal required

Answer 29

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

Question 30

former judges in private practice conflict

Answer 30

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

Question 31

representatrion of an organization and an individual of the organization

Answer 31

ordinary conflict rules apply requires consent of the organization consent must be given by someone other than the person to be represented

Question 32

when conflict arises between organization and its constituents

Answer 32

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

Question 33

duty to report up within an organization

Answer 33

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.

Question 34

exceptions to the duty to report professional misconduct

Answer 34

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

Question 35

screening process for lawyer who changes firms

Answer 35

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

Question 36

screening notice provisions

Answer 36

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