Conflict Of Interest part 1 Flashcards
What is the basic duty regarding conflicts of interest?
A lawyer must not represent a client if a conflict of interest exists unless:
1. The lawyer reasonably believes they can represent each client competently and diligently, 2. The representation is not prohibited by law, 3. The clients are not directly adverse in the same proceeding, and 4. Each client gives informed consent in writing.
Example: A lawyer cannot represent both the buyer and seller in a lawsuit unless they meet all these conditions and both parties give written consent.
What are the consequences of failing to address a conflict of interest?
A lawyer who fails to resolve a conflict can be subject to:
1. Disqualification from representing one or both parties,
2. Disciplinary action by the bar (e.g., suspension or disbarment),
3. Civil liability for malpractice if the client is harmed.
Example: If a lawyer fails to disclose that they are advising both parties in a transaction and one loses money, that party may sue the lawyer.
What are imputed conflicts of interest?
If one lawyer in a firm has a conflict, it usually extends to all lawyers in the firm. This means no lawyer in the firm may undertake the representation unless:
1. The conflicted lawyer is properly screened, 2. They are not materially involved in the matter, 3. The client is given notice and an opportunity to object (Rule 1.10).
Example: If a new associate worked on a case at a previous firm, the new firm may only continue the case if the associate is screened.
What is considered a “firm” for conflict purposes?
A “firm” includes any group of lawyers who:
1. Share office space or branding,
2. Hold themselves out as practicing together,
3. Share fees or resources,
4. Collaborate on cases.
It can include solo practitioners who share space or services if they appear to be a firm to the public.
Example: Lawyers who share a website, receptionist, and email domain may be considered one firm under Rule 1.0.
Are any conflicts not imputed to others in the firm?
Yes. Exceptions include:
1. Personal conflicts (e.g., a lawyer is dating the opposing party),
2. Proper screening for laterals or government lawyers,
3. Short-term legal services under Rule 6.5 where conflicts are not known.
Example: If a lawyer is dating a party in a case, the rest of the firm may still represent the client if the lawyer is not involved.
What are concurrent conflicts of interest?
Concurrent conflicts exist when:
1. Representation of one client is directly adverse to another client,
2. There is a significant risk that the lawyer’s duties to one client, a former client, or their own interests will materially limit their ability to represent another client.
Example: A lawyer representing both the driver and the passenger in a car crash case against a third party may have a conflict if the clients later blame each other.
Can a client waive a conflict?
Yes, but only if the lawyer:
1. Reasonably believes they can represent the client effectively,
2. The conflict is not between clients on opposing sides of the same litigation,
3. The client gives informed consent, confirmed in writing.
What makes consent “informed” and valid?
Consent is valid if:
1. The lawyer explains the nature of the conflict,
2. Describes the risks and potential effects on representation,
3. Explains alternatives, such as seeking independent counsel,
4. The client gives written consent (signature or confirmation of prior oral consent).
Example: A client told only that a “conflict might exist” without details has not given informed consent.
Can a lawyer be on both sides of the same case?
No. Even with informed consent, Rule 1.7(b)(3) prohibits representation of clients directly adverse to each other in the same litigation.
Example: A lawyer may not act as both prosecutor and defense attorney in the same case—even with consent.
Can clients revoke consent to a conflict?
Yes. A client may revoke consent at any time. If this happens:
1. The lawyer may need to withdraw from representing one or both clients,
2. The lawyer must avoid using confidential info obtained from the other client.
Example: If one party in a joint venture revokes consent, the lawyer may have to drop both clients.
Can clients waive future conflicts?
Yes, but:
* The waiver must be specific enough for the client to understand what they’re waiving, * The more sophisticated the client, the more likely courts are to enforce it.
Example: A law firm’s general waiver signed by a large corporation may be upheld, but not for an unsophisticated individual.
What is a material limitation conflict?
A conflict exists when the lawyer’s representation is materially limited by:
* Responsibilities to another client,
* Duties to a former client or third party,
* The lawyer’s own personal or financial interests.
Example: A lawyer cannot advocate for a zoning change that benefits their own investment property while representing a client opposing that change.
What about representing co-defendants in a criminal case?
Co-defendant representation is strongly discouraged because:
* It may violate the Sixth Amendment right to effective counsel, * The lawyer cannot favor one client over the other, * If one client flips or blames the other, withdrawal may be required.
Example: If one criminal defendant agrees to testify against the other, the lawyer must withdraw from both.
How are conflicts handled in non-litigation matters?
In business deals, estate planning, or transactional law:
* Lawyers must identify potential conflicts, * Fully disclose all risks and material facts, * Obtain informed written consent, * Update conflict analysis if facts change.
Example: A lawyer drafting a will for three siblings must explain possible future conflicts over assets.
Can a lawyer refuse a court appointment to represent an indigent client?
Under what conditions may a lawyer decline a court appointment to represent an indigent client?
Answer: A lawyer must not seek to avoid a court appointment unless:
1. Representing the client would violate the law or ethical rules (e.g., due to a conflict of interest),
2. It would impose an unreasonable financial burden on the lawyer, or
3. The client or the cause is so repugnant to the lawyer that it would impair their ability to provide effective representation. [See ABA Model Rule 6.2]
Example: A lawyer asked to represent someone in a hate crime defense case might be allowed to decline if they show the case would impair their ability to provide effective counsel due to personal beliefs.
What ethical duty does a legal aid or public defender lawyer owe to indigent clients?
Question: Does a staff lawyer at a legal aid society owe full loyalty and independence to indigent clients?
Answer: Yes. Even if the lawyer’s salary is paid by a legal aid organization, the clients are those seeking assistance and the lawyer owes them full independent professional judgment. The organization cannot interfere in case handling. [See ABA Model Rule 5.4(c)]
Example: A public defender must not let their supervisor or funding body influence whether to file a suppression motion or negotiate a plea deal.
Can a lawyer give financial assistance to an indigent client?
Is a lawyer ever allowed to provide financial help to an indigent client?
Answer: Yes, under limited conditions:
- A lawyer may pay court costs and litigation expenses for an indigent client without expectation of repayment.
- A lawyer may provide modest gifts for necessities (e.g., food, rent, medicine), but must not:
1. Advertise or promise gifts to attract clients,
2. Expect reimbursement,
3. Use the gifts to influence retention. [ABA Model Rule 1.8(e)]
Example: A lawyer may buy a bus ticket for a homeless client to attend a court hearing, but cannot loan money to help them pay off debts.
