Conflict of Interest

Question 1

Representing multiple P’s or D’s in civil litigation/non-litigation

Answer 1

Four-step guide:

1. Analyze the facts of the case. See if atty can effectively represent both clients
2. Disclose potential conflicts to each client
3. Obtain written informed consent from each client
4. Consider whether a reasonable lawyer would advise these clients to consent.

If potential conflicts ripens into a present conflict, explain steps again to clients.
If reasonable lawyer would advise clients not to consent, then lawyer must withdraw.

Question 2

Business transactions with clients

Answer 2

1. Terms must be fair to the client
2. Terms are fully disclosed in writing. Written in common language, and all essential terms and lawyer’s role are disclosed.
3. Client advised in writing to get advice of independent counsel about arrangement
4. Client gives written/signed informed consent.

Question 3

Aggregate settlement agreements

Answer 3

Lawyer can only participate in aggregate settlement agreements if:

1. Clients come to an agreement among themselves how the sum will be shared.
2. Must disclose to each client all the terms of the settlement
3. Written signed informed consent from each client

Question 4

Disciplinary Action

Answer 4

When a client is disadvantaged by the attorney’s use of information.

Question 5

Civil Liability

Answer 5

if an attorney uses the confidential information of a current, former, or prospective client to his own pecuniary gain, he can be subject to civil liability even if the client is not disadvantaged by the attorney’s use of the information.

Question 6

Government lawyer with confidential information about a person

Answer 6

must not later represent a private client whose interests are adverse to that person, when the information could be used to the material disadvantage of that person.

If lawyer is disqualified under this provision, then lawyer firm also disqualified unless:

1. The lawyer is timely screened from the case
2. Lawyer does not share in fee from case

Question 7

Lawyer may represent organization and its officers, as long as:

Answer 7

The lawyer for an organization may represent both the organization and its officers provided that none of the represented officers signs a consent to the conflict on behalf of the corporation.

Persons OTHER than the represented officers must be the ones to consent on behalf of the corporation.

Question 8

Law firm conflict of interest

Answer 8

Conflict can be cured if:
Lawyer with knowledge is timely screened from participation and prohibited from receiving any part of the fee from that matter, and proper notice is sent to former client.

Question 9

If policy holder objects to settlement but insurance company does not:

Answer 9

the lawyer must not proceed without first giving the policyholder a chance to reject the insurance company’s representation and to assume responsibility for her own defense at her own expense.

Question 10

If policyholder wants to settle but insurance company does not:

Answer 10

Lawyer must disclose the conflict to the policyholder and invite the policyholder to obtain independent counsel at the insurance company’s expense to advise the policyholder on the settlement issue

Question 11

If the lawyer for an organization learns that an employee has violated a law, the violation might be imputed to the organization, and the violation is likely to cause substantial injury to the organization:

Answer 11

Lawyer must:

Report the violation to a higher authority at the organization (or the highest authority, e.g., the board of directors); however, she may choose not to report it if she reasonably believes that the organization’s best interests do not require the violation to be reported.

Question 12

Determining if conflict exists with prospective clients

Answer 12

A lawyer who obtains confidential information during a consultation with Prospective Client (P) must not later represent another Client (C) in the same or a substantially related matter if the confidential information could significantly harm P (unless P and C both give informed consent, confirmed in writing)

Question 13

Standard for former and new/prospective clients

Answer 13

If a lawyer’s former firm represented a client in a matter, and the lawyer acquired protected confidential information from a former client, the lawyer may not thereafter represent another person in the same or a substantially related matter if that person’s interests are materially adverse to those of the former client, unless the former client gives informed consent, confirmed in writing.

Question 14

Conflict of Interest defined

Answer 14

A conflict of interest arises when there is a substantial risk that the lawyer’s representation of the client will be materially and adversely affected by the lawyer’s own interests or the lawyer’s duties to another current client, a former client, or a third person.

Question 15

A lawyer must not accept compensation from a third person for representing a client, unless:

Answer 15

(i) The client gives informed consent,
(ii) The third person does not interfere with the lawyer’s independence or the representation of the client, and (iii) The arrangement does not compromise the client’s confidential information.

Question 16

Attorney practicing out-of-state:

Answer 16

Can, if one of the following:

i. Associates with a local lawyer
ii. Admitted pro hac vice
iii. Mediating/arbitrating a matter arising out of home-state practice
iv. out of state practice is reasonably related to home-state practice

Question 17

After a trial is over and jury is discharged, a lawyer must not communicate with a former or prospective juror if ANY of the following conditions are met:

Answer 17

i. local law or court order prohibits it
ii. juror has told lawyer she doesn’t want to communicate
iii. communication involves misrepresentation, coercion, duress, or harassment.