Conflict of Interest Flashcards
Potential Conflicts of Interest
A potential conflict of interest exists when the lawyer suspects a concurrent conflict, but the representation has not yet been materially limited. Under ABA, potential conflicts do not require informed written consent. In California, without the informed written consent of each client, a lawyer may not represent more than one client in a matter in which the client’s interests potentially conflict.
Actual Conflicts of Interest
Under ABA and California laws, a lawyer must not represent a client if the representation is (1) directly adverse to another client, or (2) materially limited by responsibilities to another client, a former client, a third party, or the lawyer’s own interests
Representation Despite Conflicts
Despite actual conflicts of interest, a lawyer may represent a client if (1) the lawyer reasonably believe he will be able to provide competent and diligent representation to each affected client, (2) the representation is not prohibited by law, (3) the representation does not involve the assertion of a claim by one client against another client represented by the same lawyer, and (4) each client gives informed consent in writing.
Lawyer as witness
Under ABA, a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, unless (1) the testimony relates to an uncontested issue, (2) the testimony relates to the nature and value of legal services, or (3) disqualification of the lawyer would result in substantial client hardship.
California law is the same as ABA for jury trials without exception (3). In lieu of exception (3), California allows representation if a lawyer obtains client informed written consent.
Property as payment for services
Under ABA, a lawyer may receive property as a payment for services, as long as the payment does not involve acquiring a proprietary interest in a litigation subject matter.
Proprietary interests
Under ABA, except for liens to collect a fee, a lawyer may not obtain a proprietary interest in a litigation subject matter.
Business Transaction with a client
Under ABA and California laws, a lawyer shall not enter into a business transaction with a client, or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless: (1) the transaction or acquisition and its terms are fair and reasonable to the client and fully disclosed in writing in a manner which the client should reasonably have understood, (2) the client is advised in writing that he may seek the advice of an independent lawyer and is given reasonable opportunity to seek that advice, (3) the client consents in writing to the transaction or acquisition and its terms.
Sexual Relations
Under ABA, a lawyer may not have sexual relations with a client unless a consensual sexual relationship existed when the client-lawyer relationship commenced.
California now imposes a strict prohibition on sexual relations with a current client who is not a spouse or registered domestic partner, unless a consensual sexual relationship exists between them when the attorney client relationship commences.
Former Government Lawyer
Under ABA, a lawyer must not represent a client in a matter in which the lawyer participated personally and substantially as a government officer or employee, unless the appropriate government agency gives informed, written consent, except as permitted by law. In California, a former criminal prosecutor may not participate on the defense of the same case.
Former Firm Lawyer
A lawyer must not represent a client in a matter in which the (1) lawyer participated substantially, and (2) any attorney at the former firm has confidential, material information, unless the former client gives informed, written consent
Imputed Disqualification
Under ABA, if one lawyer employed by a firm is unable to represent because of a conflict of interest or confidentiality issue with a former client, the disqualification is imputed to the firm and no lawyer in the firm may represent. [CA law on imputed disqualification is unsettled for a conflict of interest, but automatic for confidentiality issue.]
