Conflict of Interest - Current Flashcards
what are the exceptions to imputation
- conflict based on uniquely personal interest
- conflict based on lawyer’s former dealings – can be screened
when does a concurrent conflict exist
- the rep of one client will be directly adverse to another or
- there is significant risk that the rep of one client will be materially limited by the lawyer’s own interest or by the lawyer’s responsibilities to another client, former client, or third person
when MAY a lawyer rep a client despite a current conflict
- lawyer reasonably believes that he can competently and diligently rep each affected client
- the client gives informed consent in writing
what counts as in writing
written or memorialized
can a lawyer ask a client to consent to future conflicts
only if it is reasonable and the client understands the consequences
can a lawyer rep a client who’s interests are directly adverse to those of another client
yes if both give consent in writing
what would be directly adverse
cross examining a client, repping a client’s opponent
what is a conflict about material limitation
situations in which there is a significant risk that the rep will be materially limited by the client’s own personal interests or responsibilities to a different, former client or third party
can get client consent in writing
is repping multiple clients ok
criminal - should try not
civil - may but need to tell them what that entails
how to handle multiple rep conflicts
- can lawyer effectively rep both clients
- disclose potential conflict
- get informed consent in writing
- if potential conflict comes to fruition, repeat steps 1-3
is repping two clients with inconsistent legal positions in two unrelated cases ok
if one is likely to become precedent, then that is a substantial risk that the rep will be materially limited by responsibilities to other client. must disclose and get consent in writing
what conflicts by lawyer’s own interest be materially limiting
financial interest
lawyers who are relatives (not imputed)
disclose and get consent in writing
can a lawyer enter into business transaction with client
yes if
1. the terms are fair
2. terms are fully disclosed in writing in a way client can understand
3. client is advised in writing to get advice of own lawyer
4. client gives informed consent in signed writing
what’s the exception to the rule that a lawyer can’t have a proprietary interest in the cause of action or subject matter of litigation
contingent fees
some states allow liens
what are the rules around gifts
- can’t solicit substantial gift from non-relative client
- can’t prepare a will that creates a substantial gift for you or your relative unless donee is a relative
can you acquire literary or media rights
yes. after the case is over
what are the exceptions to the no financial assistance to clients rule
- can advance litigation expenses
- can pay court costs and litigation expenses for an indigent client
- can make modest gifts for PRO BONO indigent client
what must a lawyer do for aggregate settlement agreements
- make sure the clients have come to an agreement on how the sum will be split
- disclose to each client the terms of the settlement
- each client must give informed consent in signed writing
when can lawyer accept compensation from third person
- client gives informed consent
- third person doesn’t interfere with lawyer’s independence or rep
- arrangement doesn’t compromise client’s confidential info
are sexual relationships ok
yes, if relationship came first. no imputation
are sexual relationships ok if client is an organization
not if the person supervises, directs, or regularly consults with the lawyer about the organization’s legal matters
