Conflict of Interest Flashcards
General Rule
A lawyer must not represent a client if the representation creates a concurrent conflict of interest
What is a Conflict of Interest?
A relationship that will be directly adverse to another client’s interests, or where there is a substantial risk that the lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the client will be materially limited by the lawyer’s personal interest or responsibilities
4 Situations Where Lawyer May Undertake Representation
1) the lawyer will be able to competently and diligently represent each affected client
2) representation is not prohibited by law
3) Representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same proceeding
4) each affected client gives informed consent, confirmed in writing
Representation of Multiple Parties in a Single Matter: Civil and Criminal
Criminal: the lawyer should not try to defend two people in criminal case
Civil: a lawyer may represent two parties but must obtain consent that discloses:
1) client disclosures will be shared with other clients
2) Communications will not be privileged if future litigation arises between the parties
Ownership or Financial Interest Adverse to Client
A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership or other pecuniary interest adverse to a client unless:
1) the transaction in terms are fair and reasonable to the client and if latest closed and transmitted in writing to the client in a manner that can be reasonably understood by the client
2) the client is informed in writing of the desirability of seeking the advice of independent counsel
3) the client gives informed consent in a writing signed by the client
Designating Oneself as Beneficiary
A lawyer must not
1) Solicit a substantial gift from a client
2) Prepare on behalf of a client any instrument giving any gift to the lawyer, unless the client is related to the lawyer
Literary or Media Rights
A lawyer must not obtain literary or media rights during the representation
Financial Assistance to Client
A lawyer must not provide financial assistance to a client in connection with litigation except:
1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter
2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client
Compensation from Party Other than Client
A lawyer must not accept compensation for representing a client from someone other than the client unless:
1) the client gets informed consent
2) there is no interference with the lawyer’s professional judgment or the lawyer-client relationship
3) information relating to the representation is protected
Sexual Relations Between Lawyer and Client
A lawyer must not have a sexual relationship with the client unless the sexual relationship began before the lawyer-client relationship
Former Clients
A lawyer who formerly represented a client may not thereafter represent another client in the same or substantially related matter if that client’s interests are materially adverse to the interests of the former client, unless the former client gives informed consent
Prospective Clients
A lawyer who obtains confidential information during preliminary discussions with the prospective client must not later represent a different person in the same or substantially related matter if the confidential information could significantly harm the prospective client
Lawyer as Witness
A lawyer may not represent a client in a matter where we will be a necessary witness unless:
1) testimony will relate solely to an uncontested issue
2) testimony will concern only the nature and value of legal services rendered
3) if the withdrawal of the lawyer would result in a substantial hardship to the client
Lawyer Representing Organization: Duty to Report
When a lawyer knows or reasonably should know that a constituent’s actions violate a legal obligation to the organization or will likely result in substantial injury to the organization, the lawyer must report the violation to the organization’s highest authority
Except: if disclosure is permitted under RPC 1.6
Lawyer Representing Organization: Explaining Identity
A lawyer must explain the client’s identity when she knows or reasonably should know that the organization’s interests are adverse to those of the constituents (directors, officers, employees)
