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MPRE > Conflicts > Flashcards

Conflicts Flashcards

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MPRE flashcards
1
Q

What should a lawyer do if a conflict becomes apparent after the lawyer has taken on a client?

A

They must withdraw

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2
Q

Consequences of failing to handle a conflict properly:

A

-disqualification
-professional discipline
-civil liability

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3
Q

Is one lawyers conflict of interest imputed to the entire firm?

A

Yes. a Lawyers conflict is imputed from the first lawyers to all others in the firm.

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4
Q

What are the exceptions to an imputed disqualification?

A
  1. Conflict based on uniquely personal interest of the lawyer.
    – This is because it is unlikely that other lawyers in the firm would have divided loyalties in this scenario.
  2. Specific situations involving former dealings-screening and notice.
    –former client conflicts can be cured through timely screening.
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5
Q

When does a current conflict exist?

A
  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 client will be materially limited by the lawyer’s own interest or by the lawyer’s responsibilities to another client, a former client, or a third person.
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6
Q

Can a lawyer ever represent a client despite a current conflict of interest?

A

Yes–if all four of the following conditions are satisfied:
1. the lawyer reasonably believes that he can competently and diligently represent each affected client, despite the conflict;
2. the representation is not prohibited by law;
3. the representation is not putting the lawyer on two sides of the same litigation;
4. each affected client gives informed consent. confirmed in writing.

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7
Q

Will informed consent, on its own, of the client cure a conflict?

A

No. A reasonable lawyer must believe that the client can be diligently represented despite the conflict.

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8
Q

If it is impossible for a lawyer to achieve full informed consent without violating confidentiality rules, can those details be omitted in order to get consent from the client?

A

No–this would not constitute informed consent and the conflict could not be waived.

Informed consent is when the affected client is aware of all the relevant circumstances, reasonable alternatives, and foreseeable ways the conflict might harm her.

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9
Q

Does consent need to be confirmed in writing for purposes of waiving a conflict?

A

yes. Merely oral consent will not solve a conflict.

Confirmed in writing can take two forms:
1. Tangible or electronic record that it physically or electronically signed by the client.
2. Oral consent that is promptly memorialized in a tangible or electronic record that is promptly sent to the client.

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10
Q

What kinds of informed consent require have the clients signature?

A
  1. Business Transactions
  2. Aggregate Settlements
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11
Q

What kind of conflicts cannot be waived, even if the waiver requirements are met?

A

A lawyer cannot be on both sides of the same litigation.

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12
Q

Can a client revoke consent to waive a conflict once they have given it?

A

Yes-just like a client can fire a lawyer at anytime.

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13
Q

Can a lawyer ask a client to consent to conflicts that may arise in the future?

A

Yes, but only when it is reasonable to do so and only if the client truly understands the particular kinds of conflicts that may arise and the consequences of consenting.

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14
Q

What are examples of a client that Is directly adverse to another client? (one form of current conflict)

A
  1. Opposite sides of the same litigation (cannot consent to this conflict)
  2. Representing one client in a case and representing their opponent is a different matter.
  3. Cross-examining a current client.
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15
Q

Do unnamed Members of a class count as clients?

A

No.
In class action litigation, the unnamed members of a class ordinarily are not regarded as clients for purposes of the “direct adversity” conflicts rule.

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16
Q

Can a lawyer represent co-parties in a criminal litigation?

A

Because the interests of criminal co-defen- dants are very likely to diverge, ordinarily a lawyer should not try to defend two people in a criminal case

17
Q

Can a lawyer represent co-parties in civil litigation?

A

one lawyer may represent multiple plaintiffs or defendants whose interests are potentially in conflict. However, the conflict must be addressed in accordance with the follow considerations:

  1. Determine if she can effectively represent both clients.
  2. disclose potential conflict.
  3. Get informed consent in writing.
  4. if potential conflict eventually ripens into present conflict, must repeat the above steps and possible withdraw.
18
Q

Representation of multiple parties in non-litigation matters

A

Same conflict rules apply when there is a conflict in non-litigation matters.

19
Q

Conflict concerning “Material Limitations”

A

1.Representing Multiple clients in the same matter
2. Representing Two clients with inconsistent legal positions in two unrelated patterns
3. Conflicts caused by lawyers personal interest
4. Conflict between client and their persons interest

20
Q

If there is a conflict due to a Lawyers close relative (i.e. Lawyer’s mom is opposing counsel) is this conflict imputed to the entire firm?

A

This kind of conflict is personal in nature and is ordinarily not imputed to other lawyers in a firm

21
Q

can a lawyer use a clients (perspective, current, or former) to the clients disadvantage?

A

No. a lawyer must not use such information to the client’s disadvantage, unless the client gives informed consent or some other exception to the duty of confidentiality applies.

22
Q

Can a lawyer use information about a client for the lawyer’s own benefit, or to benefit a third party?

A

No.

23
Q

Can a lawyer ever into a business transaction with a client?

A

only if all of these conditions are met:
1. The terms of the transaction are fair to the client.
2. the terms are fully disclosed to the client in writing, and expressed in a manner that the client can reasonably understand.
3. the client is advised in writing that he’s should get the advice of an independent lawyer.
4. client gives informed consent in writing and signs it.

24
Q

Can a lawyer acquire proprietary interest in the COA or subject matter of litigation?

A

No. But there are a few exceptions.

25
Q

what are the exceptions to the rule that a lawyer cannot acquire proprietary interest in the subject matter of litigation?

A
  1. contigent fee exception
  2. attorney’s lien exception
26
Q

can a lawyer solicit a substantial gift from a client who it not the lawyer’s relative?

A

No. However, a lawyer may accept a small gift from a client, such as a token of appreciation or an appropriate holiday gift.

27
Q

May a lawyer prepare a legal instrument (such as a will or deed of property) that creates a substantial gift to the lawyer?

A

No, except when the donor is one of the lawyer’s relatives.

28
Q

Can a lawyer acquire literary or media rights to a story based in substantial part on information relating to the lawyer’s representation of the client?

A

No. However, a lawyer may acquire such rights after the client’s legal matter is entirely completed, appeals and all

29
Q

Can a lawyer financially assist a client in connection with pending or contemplated litigation?

A

No. with a few exceptions.

30
Q

What are the exceptions to the prohibitions on a lawyer financially assisting a client in connection with litigation?

A
  1. advancing litigation essences
  2. paying the costs and expenses for indigent client
  3. modest gifts when representing indigent client pro bono
31
Q

can a lawyer participate in the making of an aggregate settlement agreement?

A

Because of the potential conflict, the lawyer must not participate in the making of an aggregate settlement agreement unless all of the following conditions are met:
1. clients must have come to an agreement among themselves about how much the aggregate sum will be shared
2. the lawyer must disclose to each client all of the terms of the settlement.
3. each client must give informed consent confirmed in writing and signed.

32
Q

Can a lawyer accept compensation from third parties?

A

Not unless the following conditions have been met:
1. Client gives informed consent
2. the third person does not interfere with the lawyer’s independence of the representation of the client.
3. the arrangement does not compromise the client’s confidential info.

MPRE (3 decks)

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