Conflict of Interest Flashcards
What is a conflict of interest?
A conflict exists when a lawyer cannot, in the exercise of independent judgment, freely recommend a course of action to a client because of conflicting duties owed to someone else
What are the different types of conflict of interest?
Conflicts between current clients (concurrent conflicts) (MR 1.7)
Conflicts between current and former clients(successive conflicts) (MR 1.9)
Conflicts with the lawyer’s own interests (MR1.8)
Conflicts created by third parties (MR 1.8)
Imputed Conflicts
Most conflicts are imputed to firm unless conflict is personal and does not risk representation by other members of firm
When conflict is a successive conflict arising out of migratory lawyer’s relocation to new firm, conflict can be waived as long as lawyer is properly screened, written notice is provided to affected former client.
MR 1.1: A lawyer who formerly represented the government cannot represent a party in a manner in which the lawyer personally and substantially participated unless the appropriate government agency gives its informed written consent. *This conflict is imputed but is waivable with screening and notice to former government employer
MR 1.12: Lawyer cannot represent party if lawyer formerly participated as judge, mediator, arbitrator, etc. in any matter Involving party unless all parties to the proceeding give informed written consent* This conflict is imputed but is waivable with screening and notice to former government employer
Concurrent Conflicts
Bans concurrent conflicts of interest; only waivable when the conflict does not arise from one party adverse to another in the same matter AND the lawyer reasonably believes she can competently represent both parties, the representation is not prohibited by law, and both parties provide informed written consent
Personal Conflicts
Lawyer can’t enter into business transactions with clients unless transaction is fair, client has opportunity for independent counsel and provides written consent; lawyer can’t have sex with client unless sexual relationship pre-dates lawyer-client relationship; lawyer can’t solicit gifts from client; lawyer can’t negotiate rights to client’s story or other media rights prior to end of representation; lawyer shall not pay for client, limit client’s ability for malpractice claims or settle such claim unless client is independently represented; a lawyer cannot have a proprietary interest in client’s property; lawyer can’t accept payment by a third party unless client gives informed consent, lawyer’s judgment is not compromised, and confidentiality is maintained
Successive Conflicts
Bans successive conflicts of interest unless former client gives informed written consent.
Lawyer can’t represent client if former firm represented another client whose interests are materially adverse to the new client AND about whom lawyer had received confidential information unless former client gives informed written consent
