Conflicts Flashcards
What is a concurrent conflict of interest?
When the representation of one client is directly adverse to another OR when there is a significant risk that the representation of one clinet would be materially limited by a lawyer’s responsibilities to another client.
Can concurrent conflicts of interest be waived?
Yes. But only when:
1. The lawyer reasonably believes that they can provide competent and diligent representation to both parties.
2. The representation is not prohibited by law
3. The two clients do not have claims against each other in the same litigation/proceeding, AND
4. The client gives informed consent in writing.
Is common representation allowed?
Yes, one lawyer can represent co-defendants. The laywer has a duty of loyalty to both clients.
What should a lawyer do if a concurrent conflict of interest arises between clients in a common representation?
Withdraw from representing both clients.
What is the general rule about imputed conflicts?
If one lawyer in a firm has a conflict of interest, the entire firm has a conflict as well.
When are lawyers who share an office space treated as a law firm for the purpose of imputed conflicts of interest?
- then whey conduct themselves as a law firm (does not require shared legal fees)
- when they hold themselves out to the public as a law firm
- or when they fail to take adequate measures to protect confidential client information from each other.
- When can someone who served on an arbitration panel subsequently represent a party involved in the arbitration?
- When can someone from the firm of a lawyer who served on an arbitration panel subsequently represent a party involved in the arbitration?
- When the lawyer is selected as a partisan and subsequently represents the party that chose them as the partisan.
- When the neutral attorney is timely screened and recieves no fee AND when written notice is given to the tribunal and other parties
When the party waives the imputed conflict
When can a client waive an imputed conflict?
- the lawyer reasonably believes they can represent the client competently
- the representation is not prohibited by law
- the client is not asserting a claim against another client in the same proceeding
- client gives informed consent in writing.
Imputed conflicts and non-lawyers
The conflict of a non-lawyer employee is not imputed if the firm screens the non-lawyer.
Imputed conflicts from former firms
A conflict arising from a client at a previous firm is not imputed if the new firm
1. Screens the lawyer (from rep and fee)
2. gives the client written notice
3. provides the client a certification of compliance with the MRPC
Imputed conflicts and personal interest
a personal conflict is not imputed if the firm’s representation is not materially limited by the conflcit.
What is a conflict based on personal interest?
a conflict based on a familial or sexual relationship
Are conflict checks required when providing limited legal services (i.e. pro bono intake)?
No, except a lawyer may not serve someone when, at the time of limited service, they know that they have a conflict or imputed conflict.
Legal services are limited when neither the client nor the attorney expect representation to continue beyond the brief consultation.
When is payment of the lawyer by a third party permitted?
- client gives informed consent (even if a kid!!)
- the party does not interfere with the lawyer’s professional judgement or the lawyer-client relationship
- the lawyer protects confidential client information from the third party.
Conflicts with former clients?
A laywer may not represent a new client in the same or substantially related matter when their interests are materially adverse to that of a former client.
Substantially similar matters:
1. involve the same transaction/dispute
2. objectively risk that the attorney could use confidential information they were likely to have gained from the former client to the benefit of the new client.
