Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Ethics > Conflicts > Flashcards

Conflicts Flashcards

1
Q

Mandatory withdrawl:

When is a lawyer required to withdrawl from representation of a client?

5 situtations

A

Rule 1.1: Incompetence or disability of the lawyer

Rule 3.1: if the claim is frivolous, if its based on an unsupportable legal position with no good faith argument

Rule 1.16(a)(1): if the representation would involve a violation of the Rules or other law

Rule 1.16(a)(2): if the physical or mental condition of the lawyer materially impairs his ability to represent the client

Rule 1.16(a)(3): if lawyer is discharged

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Rule 1.7 Current Clients

A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. In what two situations does a concurrent conflict of interest exist?

A
  1. If the representation of one client will be directly adverse to another client

OR

  1. If there is a significant risk that the representation a client will be materially limited by the lawyer’s responsibilities to another client, former client, third person, or a personal interest of the lawyer
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Rule 1.7 Current clients

Can a lawyer get involved in a matter against a person he represents in some other matter if the matters are entirely unrelated?

A

Not without clients informed consent

Dual representation in unrelated matters of clients whose interests are only economically adverse does not ordinarily consitutue a conflict of interest and does not require consent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Rule 1.7 (b) Current Clients

Even if there is a conflict of interest, the lawyer can represent clients if: (four things)

A
  1. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to the clients
  2. The representation is not prohibited by law
  3. The representation does not involve th assertion of a claim by one client against another client represented by the lawyer in the same litigation or other court proceeding
  4. Each client gives informed consent in writing
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Rule 1.7

What this rule require a lawyer to do to resolve a conflict of interest problem? 4 steps

A
  1. Lawyer has to clearly identify the clients
  2. Determine whether a conflict of interest exists
  3. See if the conflict is consentable
  4. If so, consult with clients and obtain their informed consent in writing
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Rule 1.7

Can directly adverse conflicts arise in transactional matters?

A

Yes

For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer who is represented by the lawyer in an some other unrelated matter, the lawyer would have to get informed consent to represent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Rule 1.7

Personal Interest Conflicts

When a lawyer has talks to his client’s opponent about working for the opponent, or working for the law firm representing the opponent, does that communication materially limit the lawyer’s representation of his client?

A

Yes it could materally limit the representation, could be a conflict of interest arising from presonal matters that could have an adverse effect on representation of a client

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Rule 1.7

Personal Interest Conflicts

Can a lawyer refer clients to an enterprise in which the lawyer has an undisclosed financial interest in?

A

No, a lawyer cannot allow business interest to affect representation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Rule 1.7

If a lawyer at a firm cannot represent a client because of a personal conflict of interest, are all other lawyers of the firm prohibited from representing that client?

A

Generally no, the other lawyers are not prohibitted from representing the client under Rule 1.10

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Rule 1.7

Can a husband-lawyer represent a client in a case in which his wife-lawyer is representing the opposing client?

A

Comment 11:

A lawyer related to another lawyer cannot represent a client in a matter where the related lawyer is representing a party UNLESS each client gives informed consent

Each client needs to know the existence of the relationship between the lawyers before the lawyer agrees to represent them.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Rule 1.7

Under (b)(1), When is a conflict not consentable?

A

When the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Rule 1.7

Under (b)(2) when is a conflict not consentable?

A

When representation is prohibited by law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Rule 1.7

Under (b)(3) when is a conflict not consentable?

A

When the clients are aligned directly against each other in the same litigation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Rule 1.7

Can a lawyer represent adverse parties in a mediation?

A

Yes, because a mediation is not befor a tribunal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Rule 1.7

Can a client who consented in writing to be represented even though there was a conflict revoke their consent at anytime?

A

Yes, it will terminate the lawyer’s representation at any time.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Rule 1.7

If a client revokes consent and terminates the representation, does that stop the lawyer from continuing to represent the other client?

A

Depends on the circumstances, including:

  • the nature of the conflict
  • whether the client revoked consent bc of a material change in circumstances
  • the reasonable expectations of the other clients, and
  • whether material detriment to the other clients or the lawyer would result
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Rule 1.7

Can a lawyer ask a client to waive conflicts that might come up in the future?

A

This is subject to the tests of 1.7(b)

Depends on the extent to which the client understands the risks

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Rule 1.7

If the lawyer finds out there is a significant risk of material limitation and does not get consent, what must he do?

A

The lawyer must refuse one of the representation or withdraw from one or both

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Rule 1.7

Conflicts in litigation

Can a lawyer advocate a legal position on behalf of one client and the opposite legal position on behalf of another client in an unrelated matter?

A

Yes, as long as there is not a significant risk that the lawyer’s action on behalf of one client will materially limit the lawyers effectiveness in representing the other client in a different case

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Rule 1.7

Non-Litigation Conflicts

What factors are relevant in determining whether there is significant potential for material limitation for conflicts arising out of court?

A

Factors include:

  • The duration and intimacy of the lawyer’s relationship with the clients involved
  • The functions being performe by the lawyer
  • The likelihood that disagreements will arise and the likely prejudice to the client from the conflict

The question is of proximity and degree

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Rule 1.7

What is common representation?

Why might they fail?

A

When a lawyer represents multiple clients in the same matter

Can fail becuase the potentially adverse interests cannot be reconciled

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Rule 1.7

Common representation

With regard to the attorney-client privilege, what is the prevailing rule in respects to commonly represented clients?

A

The attorney-client privilege does not attach.

It is assumed that if litigation happens, the privilege will not protect any such communication, and the clients should be advised

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Rule 1.7

Common Representation

Duty of confidentiality: What happens if one client asks the lawyer not to disclose to the other client information relevant to the common representation?

A

The representation will almost certainly be inadequate bc the lawyer has an equal duty of loyalty to each client, and each client has the right to be informed of anything bearing on the representation that might affect that client’s interests and the right to expect that the lawyer will use that info to that client’s benefit

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Rule 1.7

Can a lawyer for a corporation or organization also be a member of its board of directors?

A

Yes, but if there is a material risk that holding both roles will compromise the lawyer’s independence of professional judgment, the lawyer shold not serve as a irector or should ceawe to act as the corporation’s lawyer when conflicts of interest arise.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Rule 1.7

When a lawyer is representing a corporation in which he sits as a member of the board at, how does the attorney client priviledge apply

A

The lawyer should inform other members of the board that in some circumstances, matters discussed at board meetings while the lawyer is present in the capacity of director might not be protected by the attorney-client privilege

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Rule 1.8

A lawyer shall not enter into a business transaction with a client or knowingly acquire an interest that is adverse to a client unless:

(three requirements)

A
  1. Terms are fair and reasonable
  2. The lawyer advises the client, in writing, to get another attorney’s advise
  3. The client gives informed consent, in writing, agreeing to the essential terms of the transaction and the lawyer’s role in the transaction (is he representing them in the transaction?)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Rule 1.8

When can a lawyer use confidential information, relating to the representation of a client, to the disadvantage of the client?

A

When the client gives informed consent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Rule 1.8

What other Rule also applies to 1.8(a)?

What conditions must be met under that rule if the client decides to have the lawyer he is doing a business transaction with represent him in the transaction, under

A

Rule 1.7 Conflicts of Interest apply

Under 1.7 the lawyer has to disclose the risks associated with the lawyer’s dual role as both legal adivser and participant in the transaction.

Has to tell the client there is a risk that the lawyer will structure the transaction or give legal advice in a way that favors the lawyer

Lawyer must get client’s informed consent

In some cases, the lawyer’s interest may be too much to let the transaction happen under 1.7

29
Q

Rule 1.8(a)

Does it make any difference if a client is represented independently by another lawyer for the business transaction with his lawyer?

A

Yes, it changes a few things

(a) (2) is not applicable, doesnt have to advise to get indep. council bc he already has it
(a) (1) requirement to fo full disclosure is also satisfied by a written disclosure from the client’s independent lawyer, not just the original lawyer

30
Q

Rule 1.8

Does (b) stop a lawyer from using info relating to the representation of a client in all scenarios?

A

No, the lawyer can use confidential information if it doesn’t disadvantage the client.

The lawyer is allowed to use info he got from the representation to the benefit of other clients if it does not break the duty of confidentiality and is not to the disadvantage of the client

31
Q

Rule 1.8

Can a lawyer accept a gift from a non-family member client?

A

Yes if it is fair. If the gift very valuable, the lawyer should be careful because the client can retract it under the doctrine of undue influence.

A lawyer just cannot suggest that a client should give him a gift, unless the client is related to you.

32
Q

Rule 1.8(c)

Can a lawyer ask a client to name him as the executor to the client’s estate?

A

Yes, but its subject to Rule 1.7

33
Q

1.8(j)

Can a lawyer representing an organization have sex with a constituent of the organization?

A

No, not if the constituent supervises, directs or regulatly consults with that lawyer concerning the organization’s legal matters

34
Q

1.8

Can a lawyer make an agreement with a client that limits the lawyer’s liability for malpractice?

A

Only if the client is independently represented in makig the agreement bc the agreement is likely to undermine competent and diligent representation

Lawyer can make an agreement with the client to arbitrare (settle) malpractice claims

35
Q

Rule 1.8

Can you bone your client?

A

Yes, but only if you were boning her before you started your lawyer-client relationship.

36
Q

1.8

If an individual lawyer is prohibited from any conduct by this rule, does that prohibition also ally to all lawyers associated with the firm?

A

If it is included in (a) - (j), yes, it applies to all lawyers in the firm

Example one lawyer in a firm cannot enter into a business transaction with a client of another member of the firm without complying with paragraph (a), even if the first lawyer is not personally involved in the representation of the client

BUT if it is (j), no sex with clients, it is a personal matter and is not applied to other lawyers in the firm

37
Q

Rule 1.9: Duties to Former Clients

Can a lawyer who has formerly represented a client represent a new client in the same matter?

A

Yes, but only if the new client’s interests are NOT materially adverse to the former client’s interests.

But, the former client can give written consent allowing representation of the new client.

38
Q

Rule 1.9

What is the general rule relating to former clients?

A

ANY former client conflicts can be resolved by getting the informed consent in writing of the former client

39
Q

Rule 1.9

Do current and former government lawyers have to comply with this rule?

A

Yes, to the extent 1.11 (special conflicts of interest for gov officers and employees) says

40
Q

Rule 1.9

If a lawyer has repeatedly handled a type of problem (lets say tax issues) for a client, can that lawyer later represent a different client in a factually different tax problem if the representation involves a position that is adverse to the prior client?

A

Yes he can represent the other client. Just because he has argued differently for his former client doesnt necessarily stop him.

The question is whether the lawyer was so involved in the matter that the subsequent representatin can be seen as a chaning of sides in the matter in question

41
Q

Rule 1.9: Duties to Former Clients

What are the factors to determine whether matters are “substantially related?”

A
  1. If they involve the same transaction or legal dispute
  2. If there is a risk that confidential info obtained from the old client would materially advance the new client’s position in a subsequent matter.

**significant passage of time can make matters unrelated

42
Q

Rule 1.9

What is a major difference betwen the rule on conflicts with current clients and conflicts that might aversely impact former clients?

A

If the only adverse impact woul be on a former client, a lawyer is always permitted to proceed with the new work if the lawyer can secure informed consent from the former client.

A ocnflict that could adversely impact a present client might not be waivable

43
Q

RUle 1.9

If a lawyer drafts a will for a client who wishes to disinherit his eldest son, then the father dies, can the lawyer represent the eldest son to challenge the validity of the will?

A

No, cannot switch sides on the same matter

44
Q

Rule 1.9: Duties to Former Clients

When you represented an organizational client, what can prohibit you from representing a subsequent client?

A

You can’t take the new subsequent client whose matter is related if you gained knowledge of specific facts from the previous case.

If you only had general knowledge of the old client’s policies and practices, you’ll be okay to take the new client.

45
Q

Rule 1.9

Does the existence of a substantial relationship between the present and former matter depend on common facts or common legal issues?

A

Depends on common facts, lawyer cannot use factual infomation obtained in the first case to the advantage of the client in the second case

46
Q

Rule 1.9

When you move to another law firm, can you and the new firm represent a client from your old firm in a matter related to the first case with the old firm?

A

Yes, but only if you had no actual knowledge of the first case.

47
Q

Rule 1.9

Does a substantial relationship depend on whether a lawyer actually learned information in the first representation that could be used adversely to the former client in the later matter?

A

No, doesnt depend on what the lawyer actually learned, rather on what kinds of info a lawyer ordinarily would have learned in the prior matter that could be used in the secon matter in a way tha woud amterially advance the new client’s position, presumably harming the former client

48
Q

Rule 1.9

If a lawyer represents an organization and learned general knowledge about the business policies and practices that have slight relevance to the new matter, does this create a substantial relationship, precluding the lawyer from representing the new client in the new matter?

A

No, general knowledge of the client’s policies and practices ordinarily will not preclude a subsequent representation.

But, knowledge of specific facts gained in the prior representation that are relevant to the matter in question usually will preclude representation

49
Q

Rule 1.9

What if the confidential info the lawyer obtained from the first representation becomes public, is the lawyer still precluded from representing the new client if there is a substantial relationship?

A

No, if the info is public or out-of-date there is no problem

50
Q

Rule 1.9

Do courts use the substantial relationship test to decide to disqualify a lawyer or is this standard only used in lawyer discipline?

A

Both disqualifying matters and discipline matters

51
Q

Rule 1.9

Can a lawyer sue a former client on behalf of a new client, without the former client’s consent?

A

Yes, no consent is require unless the new matter is “the same or substantially related” and the new representation is “materially adverse” to the interests of the former client.

52
Q

Rule: 1.10

When can attorneys at firms represent clients with interests adverse to a current client of another attorney at the firm?

A

Prohibition is only based on personal interest of the disqualified lawyer + no risk of materially limiting representation

53
Q

Rule 1.10

When can an attorney represent a client with interest materially adverse to a former client of another attorney at the firm?

A

Representation arises out of lawyer’s association with another firm AND

Lawyer with former client is screened from current matter, receives no fee for it; AND

Written notice is given to former client AND

Certificates of compliance with the rules are provided to the former client

54
Q

Rule 1.10

Situation: An attorney leaves a firm, and takes his clients

Can his former firm represent clients with interests materially adverse to the terminated attorney’s clients?

A

Yes.

UNLESS:

  1. The matter is the same or substantially related to the original issue; OR
  2. A lawyer remaining at the firm knows privileged info protected by 1.6
55
Q

Rule 1.10

Can conflicts of interests based on law firm associations be waived?

A

YES

May be waived by the affected client via informed consent confirmed in writing (1.7(b)(4))

56
Q

Rule 1.10

Screening: 1.10(a)(2) permits lawyers in a firm to represent a client when one of the lawyers in the firm is not allowed to represent that client if the lawyer is screened.

In what six situations do the Model Rules allow for screening?

A
  1. Where a lawyer has moved from one firm to another (Rule 1.10(a)(2)
  2. Where one lawyer in a firm has a conflict that is based on a personal interest that does not materially impact the other lawyer’s representation of the client (Rule 1.10(a)(1)
  3. Where a former nonlawyer employee has become a lawyer (Rule 1.10 comment 4)
  4. Where a former government lawyer entered a lawfirm (Rule 1.11)
  5. Where a lawyer recieved confidential info from a prospective client who did not become an actual client (Rule 1.18)
  6. Where a lawyer is disqualified from working on a matter bc the lawyer previously worked on the same matter as a judge, clerk, arbitrator, mediator or similar role (Rule 1.12)
57
Q

Rule 1.10

This rule governs all practicing lawyers except:

A

Government lawyers

58
Q

Rule 1.10

Are lawyers who have separate practices but who share office space considered a law frim for conflict purposes?

A

They can be, if their file management and communication permit one lawyer in a suite to have access to confidential info about a matter being handled by the other lawyer.

59
Q

Rule 1.10

Can a client waive an imputed conflict?

A

Yes, the analysis for waiver of a conflict imputed in the firm is the same for consenting to concurrent conflicts under 1.7(b), and consent must be in writing

1.7(b) Requirements

  1. competent and diligent rep
  2. not illegal
  3. not same litigation or court proceeding
  4. effected clients give informed consent
60
Q

Rule 1.10

Allyson used to work at Firm A. Her big client was Fireball. Allyson moved to Firm B, Fireball moves its legal business to Firm B to keep Allyson as it’s lawyer. After Allyson and Fireball are gone, can Firm A accept work that would conflict with the interests of Fireball?

A

Firm A can take on a new client w/ materially adverse interests to Fireball unless the matter is substantially related to the work that Allyson did for Fireball while at Firm A,

AND a lawyer who still works there has material conidential info learned in connection with the work dont for Fireball, would need informed consent.

Should ask: (a) is there material adversity (b) substantial relationship (c) confidential info known?

61
Q

Rule 1.11

What information must a former government attorney keep confidential?

A

Info government agency barred by law from disclosing by law.

Info government agency has a privilege not to disclose, and they have not yet disclosed

62
Q

Rule 1.11

Imputation:

When an attorney is barred from representing a client due to being substantially and personally involved in the matter as a gov. employee, can someone in their firm represent the client?

A

No.

UNLESS

Disqualified lawyer is screened + gets no fees; AND

Written notice promptly given to gov agency

63
Q

Rule 1.11

A lawyer currently serving as a govt. official shall not:

A
  1. Participate in a matter in which the lawyer participated personally and substantially while in private practice, unless the govt. gives informed consent.
  2. Negotiate for private employment with anyone who is involved in a matter in which the lawyer is participating personally and substantially.
64
Q

Rule 1.12

What limitations are placed on former judges/3rd party neutrals in representing new clients?

A

Clients cannot be connected with an action in which the attorney was substantially and personally involved as a 3rd party neutral

UNLESS

All parties to proceedings action give informed consent confirmed in writing

65
Q

Rule 1.12

With whom and when may a lawyer acting as a adjudicative officer negotiate for other employment?

A
  1. With persons NOT involved in a matter the lawyer is participating in personally and substantially; OR
  2. If a clerk, upon notifying the judge
    • NOTE: Overcomes personal and substantial involvement
    • NOTE: Does not require consent from the judge
66
Q

Rule 1.12

What can a lawyer acting as a judge not negotiate for?

A

He cannot negotiate for employment with a lawyer or party involved in a case in which he is acting as a judge or officer

67
Q

Rule 1.12

Can a lawyer who is a law clerk for a judge negotiate for employment with a lawyer involved in a case the clerk is working on?

A

Yes, if he notifies the judge/officer that he is doing so

68
Q
A

Ethics (10 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions