Conflict of interest: current clients part one 1.7

Question 1

1.7 conflict of interest: current clients

Answer 1

1.7 deals with CURRENT CLIENTS

Question 2

1.7 (a)(1) and (2)

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if

Answer 2

(1) the representation of one client will be DIRECTLY ADVERSE to another client; or

(2) there is a significant risk that the representation of one or more clients will be MATERIALLY LIMITED by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Question 3

How do you know if there is a 1.7a conflict

Answer 3

Directly adverse or materially limited

Question 4

1.7(a)(1) directly adverse
see comm six
what does this mean and whats the rationale?

Answer 4

a lawyer acting as an advocate in one matter against a person the laweyer reps in some other matter EVEN WHEN THE MATTERS ARE WHOLLY UNRELATED

if this is done, the curren client may feel betrayed and the resulting damge to the acr will result in an impairment in the lawyers ability to advocate

Question 5

Analyzing conflicts under 1.7

Answer 5

1) Identifying current clients (included prospective clients)
2) determine whether conflict exists under 1.7(a)
3) determine whether the rep can be undertaken with informed consent or if the conflict is non consentable under 1.7(b)
4) obtain informed consent, confirmed in writing

Question 6

make a 1.7 flow chart

Answer 6

check

Question 7

Attorney represents Susan in her divorce from Jeremy. Impressed by the Attorney’s legal skills, Jeremy approaches the Attorney and asks the Attorney to represent him in his employment discrimination suit against his employer.

what kind of 1.7a conflict is present here, and explain why

Answer 7

1.7(a)(1) directly adverse

The Attorney’s current client is adverse to Jermey’s even though they are unrelated
Ability to advocate for Susan against Jeremy might be impaired due to Attorney’s
rep of Jeremey or vise versa * Susan will feel betrayed

Question 8

Lawyer L is defending D, who is accused of the armed robbery of a liquor store. L looks at the prosecutor’s witness list and see that it includes Z, a purported eyewitness to the armed robbery. L knows Z very well because he is defending Z in a drunk driving case. In defending D, L will have to cross-examine Z about his capacity to perceive, remember, and relate events accurately.

Is there a conflict of interest?

Is there a conflict?

Answer 8

yes, directly adverse

Z testifying against current client
If she took Z as a client L would have to cross examine

But zealous advocacy for D means rigorous cross-examination of Z

Question 9

1.7(a)(2) materially limited

see comment 8

Answer 9

Risk that the representation will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Question 10

Client approaches attorney about suing Corp A. Attorney is on the board of directors at Corp A.

1.7(a) conflict?

Answer 10

Attorney’s responsibilities to Corp A will materially limit their ability to zealously advocate for Client.

Question 11

Big Law Firm created a business structure for its client (Corp A) that has huge tax benefits. A senior manager in Corp A is concerned that these structures are not 100% legal and reports up to the CEO. The CEO asks Big Law Firm to do an internal investigation into the legality of these structures.

1.7a conflict?

Answer 11

Big Law Firm’s self- interest will limit its ability to investigate the legality of the structures it created.

Question 12

An attorney represents BMW. Then, her mom gets killed in a car accident. The cause of the accident was a BMW car malfunctioning.

1.7a conflict

Answer 12

An attorney’s personal feelings will limit her ability to rep BMW.

Question 13

Materially Limited: Co-Clients
Comment 23

Answer 13

Criminal matters: typically should not rep co-defendants
Civil: can represent co clients
HOWEVER must meet 1.7(b) to take on the representation – usually means getting informed consent

Question 14

step three of the 1.7 analysis requires you to Determine whether the representation can be undertaken with informed consent or if conflict is nonconsetable under 1.7(b)

what are three ways that a conflict will not be consentable (ie answers b(1) -(3) in the negative)

Answer 14

(b)(1): No reasonable belief that attorney can provide competent and diligent representation. This is an objective test.

(b)(2): the rep is prohibited by law

(b)(3): attorney can’t represent clients on both sides of a litigation

Question 15

(b)(3): attorney can’t represent clients on both sides of a litigation
– what kind of law does this apply to

Answer 15

this only applies to litigation. In transactional matters, clients can consent. Eg, in a real estate transaction, attorney can usually rep buyer and seller with informed consent

Question 16

Lucy gets charged with manslaughter after killing a pedestrian, and she approaches Attorney about defending her. The pedestrian was Attorney’s husband.

is this a waivablte conflict under 1.7b

Answer 16

no via (b)(1): No reasonable belief that attorney can provide competent and diligent representation.

Question 17

State law prohibiting attorneys from representing co-defendants in a capital case. atty wants to jointly rep def one and two in the same matter and he got the consent from both clients

waivablte conflict under 1.7b?

Answer 17

nope via (b)(2): the rep is prohibited by law

Question 18

Attorney reps P in products liability suit against D.

waivablte conflict under 1.7b?

Answer 18

nope via. (b)(3): attorney can’t represent clients on both sides of a litigation

Question 19

see comments 14-17 for more on unwaivble conflicts

Question 20

Sanford V. COMMONWEALTH OF VIRGINIA

John Sanford, a disabled individual, died after being restrained and sedated at the Medical College of Virginia Main Hospital. Sanford’s estate sued, and one attorney represented multiple MCV employees while another represented multiple police officers. Conflicting testimonies led the plaintiffs to file a motion to disqualify both attorneys for conflicts of interest.

If an attorney represents multiple clients in the same action, must the attorney withdraw from representing more than one of the clients if severe and pervasive conflicts of interests arise?

Answer 20

These are the types of conflicts that a reasonably attorney would not think could argue
Ie violation of 1.7(b)

If an attorney represents multiple clients in the same action, the attorney must withdraw from representing more than one of the clients if severe and pervasive conflicts of interests arise.