Conflict of interest Flashcards
With current and former clients
- Schritt: Representation prohibited when
A. current clients
a) representation will be directly adverse to another client (nicht seine interests! Bsp. lawyer is advocate in one matter against a person the lawyer represents in another matter, even when matters are wholly unrelated! bei unrelated matters reicht rein ökonomische interests nicht aus!)
b) significant risk repsentation will be materially limited by responsibilities to current client, former client, third person or lawyers personal interest
B. former clients
representation is materially adverse to former clients interest in substantially related matter
C. limited legal services client (pro bono Ausn.)
representation allowed, wenn:
1. neither lawyer nor client expected representation to continue
2. lawyer does not know at time of representation that conflict exists
Rechtsfolge:
wenn währenddessen auftritt muss lawyer von der representation von all withdrawn
- Schritt: Waive
A. current clients
1. reasonably believes that he will be able to provide competent and diligent representation
2. representation not prohibited by law and
3. all clients provides informed consent, confirmed in writing
4. representation not claim one client against another in same litigation/proceeding
B. former clients
gives informed consent, confirmed in writing
Lawyers own personal interest
Grds.
may not represent if representation may be materially limited by lawyers own interest
Ausn.
1. reasonably believes that he will be able to provide competent and diligent representation
2. representation not prohibited by law and
3. client provides informed consent, confirmed in writing
Lawyer & Geschenke
lawyers are prohibited
a) from soliciting a substantial gift
b) or preparing an instrument that gives a substantial gift to lawyer or a person related to lawyer (insb. lawyer hilft bei will, Ausn. client is related to lawyer)
Former Government Lawyers
Grds.
cannot a represent client in a mateter if he
a) participated in same matter personally & substantially as government lawyer or
b) acquired confidential governent information & clients interest are adverse
Ausn.
if no confidential government information, government can waive with informed consent in writing
Sexual relationship with client
a) before relationship started:
1. no discipline
2. disqualification if representation materially limited
3. waiver möglcih
b) after lawyer-client relationship started:
1. discipline
2. disqualification
3. kein waiver möglich
Sexual relationship with constituent of organzisation
no relationship with person who supervises, directs, regularly consults wiht lawyer
Sex mit witness-employee daegen ok
Lawyer served already as an arbitrator in the case?
Grds. disqualified dann den client zu vertreten
Ausn. lawyer war partisan in a multimember panel
Conflicts between prospective clients
nach consultation mit einem prospective client lawyer is prohibited from representing another client with interests materially adverse to consulted client if
- same or substantially related matter
- lawyer received information from that could significantly harm the prospective (den ersten) client
Imputed disqualification (contagious)
Grds. if one attorney has conflict of interest, all other attorneys have it
Ausn.
1. conflict is based on personal interest of the one attorney and does not present a significant risk of materially limiting the representation by the remaining attorneys (Bsp. lawyer hatte nur kleine pro bono Sache gemacht oder Bruder/Schwester Fall)
- nonlawyer employee screened
- lawyers conflict from previous firm is screened, receives no fee (aber annual partner share erlaubt), former client is given written notice and certification of comliance with MPRC
(dann Representation ok, selbst wenn client widerspricht!) - waiver:
(1). reasonably believes that he will be able to provide competent and diligent representation
(2.) representation not prohibited by law and
(3.) client provides informed consent, confirmed in writing
(4.) representation not claim one client against another in same litigation/proceeding
Lawyer-witness rule
Grds. im selben trial beides nicht erlaubt
different lawyer derselben firm wohl aber ok
Disqualification based on participation as third-party neutral
a) disqualification of lawyer wenn personally & substantially participated as third-party n eutral in matter connected to clients representation
Ausn. partisan in multimember panel
b) diese disqualification ist imputed to lawyers firm
Ausn.
1. disqualified is timeley screened
2. receives no part of fee
3. prompt wirtten notice to parties & tribunal
(keine Zustimmung nötig)
Disqualification when lawyer switches firms
weil es üblich ist, dass clients their lawyer bei switches folgen, ist es
Grds. erlaubt, dass former firm einen neuen client vertritt, dessen Interessen materially adverse zum mitgenommenen sind
Ausn.
new matter is the same und verbleibende lawyer haben obtained confidential information that is material to new matter
