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Conflicts Flashcards

1
Q

May a client revoke the client’s informed consent to a lawyer’s conflict of interest?

A

Yes. A client who has given informed consent to a conflict of interest may revoke that consent at any time. The client may also terminate the lawyer’s services at any time, notwithstanding that the client previously consented to the conflict.

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2
Q

In general, does a concurrent conflict of interest arise if lawyers representing potentially adverse clients are related to one another by blood or by marriage?

A

Yes. In general, a blood or marital relationship between lawyers who represent potentially adverse clients is considered to be a concurrent conflict of interest that requires each client’s informed consent to the representation. Such a close relationship between lawyers increases the risk of revealing confidential information and may compromise each lawyer’s loyalty to the client and independent professional judgment.

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3
Q

If a lawyer is representing two or more clients, does the lawyer need to disclose each individual’s settlement amount?

A

Yes, the lawyer must disclose all material terms of the settlement, including what each client will receive, and get written informed consent from each client.

Rule 1.8(g)

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4
Q

Can a lawyer have a sexual relationship with a client?

A

No, unless a consensual relationship existed prior to the lawyer-client relationship.

Rule 1.8(j)

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5
Q

A lawyer may represent a client notwithstanding a concurrent conflict of interest if:

> > ) the lawyer __________ believes that she will be able to represent each affected client _________ and __________,

> > ) the representation is not __________ by ____,

> > ) the representation does not involve one ______ asserting a _____ against another ______ represented by the lawyer in the same _________ or other __________, and

> > ) each affected ______ gives written informed _______.

To obtain informed _______, the attorney must make each affected client aware of the relevant _____________ and the material, reasonably ___________ ways in which the conflict of interest could adversely affect the client’s interests.

A conflict of interest that can be waived by a client’s ________ consent is said to be consentable.

A

A lawyer may represent a client notwithstanding a concurrent conflict of interest if:

> > ) the lawyer REASONABLY believes that she will be able to represent each affected client COMPETENTLY and DILIGENTLY,

> > ) the representation is not PROHIBITED by LAW,

> > ) the representation does not involve one CLIENT asserting a CLAIM against another CLIENT represented by the lawyer in the same LITIGATION or other PROCEEDING, and

> > ) each affected CLIENT gives written INFORMED consent.

To obtain informed CONSENT, the attorney must make each affected client aware of the relevant CIRCUMSTANCES and the material, reasonably FORSEEABLE ways in which the conflict of interest could adversely affect the client’s interests.

A conflict of interest that can be waived by a client’s INFORMED consent is said to be consentable.

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6
Q

Can a lawyer take inconsistent legal positions in different tribunals at different times on behalf of different clients?

A

Generally yes. But, a conflict of interest exists if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case.

Rule 1.7, comment 24

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7
Q

Is an arbitrator selected as a partisan of a party in a multimember arbitration panel prohibited from subsequently representing that party?

A

No. Rule 1.12(d).

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8
Q

If a lawyer is disqualified under Rule 1.12 (former participation as a judge, etc), can other lawyers in the same firm represent the matter?

A

Yes, if:

Disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee; and Parties involved are given prompt written notice so that they may ensure compliance with the provisions of this Rule.

Rule 1.12(c)

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9
Q

Can a lawyer represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer (arbitrator, etc?)

A

No, unless all parties give written informed consent. Rule 1.12

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10
Q

If a lawyer formerly worked for the government and joins a new firm, can lawyers in new firm handle matters the lawyer participated in while in public service?

A

Yes as long as:

The disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
The appropriate government agency is given prompt written notice so that it can ascertain compliance with the provisions of Rule 1.11(b).
Rule 1.11(b)

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11
Q

Can a former government lawyer join a firm that has clients with direct conflicts with the government agency, and about which the attorney possesses protected information?

A

Yes, as long as the lawyer does not represent a client in connection with a matter in which the lawyer has personally and substantially participated as a public employee unless the government agency gives written informed consent.

Rule 1.11(a).

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12
Q

Can a disqualification under Rule 1.10 be waived by the affected client?

A

Yes, but this is rare.

Rule 1.10(c).

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13
Q

If a lawyer no longer works at a firm, is the firm prohibited from representing a person who has interests materially adverse to those of a client the lawyer formerly represented?

A

No, unless:

The matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and
Any lawyer remaining in the firm possesses protected confidential information that is material to the matter.

Rule 1.10(b)

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14
Q

Can a partner receive compensation directly related to a matter from which they are disqualified?

A

No. Rule 1.10.

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15
Q

If a new lawyer is properly screened in accordance with the model rules, what happens if the former client still objects?

A

As long as the new lawyer was properly screened, client objection is irrelevant because consent wasn’t required, only notice.

Rule 1.10

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16
Q

If an imputed confiict is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, when is representation allowed?

A
  1. Disqualified lawyer is timely screened and receives no part of the fees;
    Client is given prompt written notice, including a description of the screening procedures employed; a statement of the firm’s compliance with the Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections about the screening procedures; and
    Certifications of compliance with the Rules and with the screening procedures are provided to the former client upon the former client’s written request and upon termination of the screening procedures.
    Rule 1.10(a)(2)
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17
Q

In general, may a lawyer properly ask a client to waive potential future conflicts of interest?

A

Yes.

In general, a lawyer may properly ask a client to waive future conflicts of interest.

However, whether a waiver is effective will depend largely on the extent of the clients understanding of the potential consequences of the prospective waiver.

Broadly speaking, a waiver by a sophisticated client is more likely to be deemed effective than a waiver by an unsophisticated client or a waiver by a client who has little experience with legal services.

Similarly, a specific, detailed waiver is more likely to be deemed effective than a vague and open-ended waiver.

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18
Q

May a lawyer represent multiple clients who are asserting claims against one another in the same litigation if the clients give informed consent?

A

No. A lawyer may not represent clients who are formally opposed in litigation, i.e., who are asserting claims against one another, even if the clients give informed consent.

A conflict like this is considered to be too fundamental and too serious to be consentable.

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19
Q

Under the model rules, should a lawyer ordinarily agree to represent multiple defendants in a criminal case?

A

No. Under the MRPC, a lawyer ordinarily should not agree to represent multiple defendants in a criminal case. Although representation of this type is not absolutely prohibited by the MRPC, the potential for conflicts of interest is so great, and so fundamental to the representation, that the MRPC counsel strongly against it.

In particular, a criminal case against multiple defendants often raises the possibility that one codefendant will strike a bargain with prosecutors to testify against other codefendants in exchange for leniency or a reduced sentence. Clients in that position are too fundamentally adverse to one another to permit joint representation.

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20
Q

Does a concurrent conflict of interest arise if a lawyer represents one client in a matter that is directly adverse to another client, even if the lawyer does not represent both clients in the same matter?

A

Yes. A concurrent conflict of interest arises if a lawyer represents one client who is directly adverse to another, even if the lawyer does not represent both clients in the same matter. This rule applies to both litigation and transactional representation. A lawyer who wishes to undertake representation that is directly adverse to another client must either obtain informed consent or withdraw from the representation.

This situation should be distinguished from a situation in which a lawyer seeks to represent directly adverse clients in the same matter. A conflict of that type is not consentable; i.e., it cannot be waived by either client.

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21
Q

If a lawyer seeks to represent in a single matter multiple clients whose interests are not directly opposed, but which may diverge from one another, is it possible for a conflict of interest to exist even though the clients are not formal adversaries in the matter?

A

Yes. If a lawyer seeks to represent in a single matter multiple clients whose interests are not directly opposed, but which may diverge, a conflict exists if there is a significant risk that the lawyer’s representation of any client will be materially limited by the lawyer’s responsibilities to another client (i.e., if there is a material-limitation conflict of interest).

In evaluating potential conflicts in this situation, the lawyer should consider factors such as:

—the duration and depth of the relationship with each client;

—the lawyer’s function in the matter (e.g., advisor, negotiator, or advocate);

—the likely prejudice to one client from conflict with others;

—the likelihood that the clients’ interests will diverge; and

—whether a divergence in client interests will interfere with the lawyer’s professional judgment in considering reasonable alternatives or courses of action for each client.

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22
Q

A banker, an architect, and a developer wanted to establish a real estate company. The banker would provide the initial seed money and financing, the architect would provide the architectural services, and the developer would provide the land for the initial real estate development. The banker, architect, and developer contacted a lawyer to assist them in forming their joint venture.

Does a conflict of interest exist for the lawyer?

A

Yes. A conflict of interest exists. A material-limitation conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, propose, or execute a course of action for a client will be materially limited due to the lawyer’s other responsibilities or interests. If several people engage a lawyer to form a joint venture, the lawyer’s ability to recommend all possible positions that any one person might take will be materially limited by the lawyer’s duty of loyalty to the other members of the proposed joint venture.

Here, the banker, architect, and developer likely had different opinions on issues such as compensation and shares of ownership in the joint venture. These competing interests could materially limit the lawyer’s ability to recommend all the options in the best interest of each individual. Thus, a material-limitation conflict of interest exists.

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23
Q

Do the MRPC always prohibit a lawyer from taking inconsistent legal positions in different cases if any of those cases might create a precedent that is adverse to one of the lawyer’s other clients?

A

No. A lawyer is not always prohibited from taking inconsistent legal positions in different cases. The mere risk of creating adverse precedent for a different client in a separate matter is not inherently a conflict of interest.

However, a conflict could arise if a lawyer’s advocacy on behalf of one client materially limits the lawyer’s ability to effectively represent another client, e.g., if the lawyer’s advocacy creates precedent that is not merely adverse to another client, but rather seriously weakens the other client’s legal position. To assess potential conflicts in this situation, the lawyer should consider factors such as:

—the significance of the issue to the clients,

—the clients’ reasonable expectations of the lawyer, and

—the nature of the relationship between the matters.

If a conflict does exist, the lawyer must either obtain informed consent or withdraw from the representation.

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24
Q

May a lawyer disclose information relating to the representation of a current or former client in assessing conflicts of interest?

A

Yes. A lawyer may disclose information relating to the representation of a current or former client to detect and address conflicts of interest arising from changes in the lawyer’s employment or changes to the composition of a law firm. However, the lawyer may do so only to the extent that the disclosure would not violate the attorney-client privilege or prejudice the client. The disclosure typically should include, at most: (1) the identity of the client and other parties; (2) a brief, general summary of the issues; and (3) whether the matter has concluded.

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25
A lawyer represented a woman in various tax matters. The lawyer also represented a local baker in various employment matters. One day, while the woman was walking down the street, she was hit by the baker’s delivery truck and suffered injuries. The woman called the lawyer and said she wanted the lawyer to sue the baker on the woman’s behalf. Does the lawyer need to obtain informed consent from both the woman and the baker before the lawyer may take on the representation of the woman to sue the baker?
Yes. The lawyer must obtain both clients’ informed consent before taking the representation. Loyalty to a current client prohibits a lawyer from undertaking a representation that is directly adverse to that client without first obtaining the client’s informed consent. In other words, without informed consent, a lawyer may not advocate against a client in one matter if the lawyer represents that client in another matter—even if the matters in question are unrelated. Here, the woman and the baker are existing clients of the lawyer, and the woman’s potential lawsuit against the baker is directly adverse to the baker. If the lawyer takes the case, the baker might feel betrayed, and the woman might wonder if the lawyer is putting full effort into a case against one of the lawyer’s other clients. Thus, the lawyer cannot take on the matter without first obtaining both clients’ informed consent.
26
If a lawyer represents multiple clients in a matter, under what conditions may the lawyer participate in arranging a collective settlement of civil claims or a collective plea agreement to criminal charges?
If a lawyer represents multiple clients in a matter, the lawyer may participate in arranging a collective settlement of civil claims or a collective plea agreement to criminal charges only if: ---each client gives informed consent in a signed writing, and ---the lawyer discloses all claims or pleas involved, as well as the participation of each person in the arrangement. This rule applies both to an individual lawyer and to all lawyers in that lawyer’s firm. Regardless of any conflict or waiver, each client retains the right to decide for herself whether to settle the matter on the terms arranged.
27
In general, is a lawyer permitted to solicit a substantial gift from a client or to prepare on the client’s behalf any document giving a substantial gift to the lawyer?
No. In general, a lawyer may not: ---solicit a substantial gift from a client or ---prepare on the client’s behalf any document giving a substantial gift to the lawyer or any person related to the lawyer, unless the lawyer or recipient of the gift is related to the client. For purposes of this rule, a relation is a spouse, child, grandchild, parent, grandparent, or other person with whom the lawyer or client has a close and familial relationship. This rule applies both to an individual lawyer and to all lawyers in that lawyer’s firm. This rule does not prohibit simple or insubstantial gifts so long as the situation is generally fair to the client. Nor does this rule prohibit a lawyer from seeking appointment as an executor of the client’s estate or other paying fiduciary position, subject to the general rules regarding conflicts of interest.
28
A lawyer had represented a client for 20 years, and the client was genuinely grateful for the lawyer’s loyalty and wise counsel. The client instructed the lawyer to revise the client’s will to provide for the lawyer to receive $100,000 from the client’s estate upon the client’s death. The lawyer tried to turn down the testamentary gift, but the client insisted. The lawyer and the client were not related to one another. May the lawyer prepare the will as instructed by the client?
No. The lawyer may not prepare the will as instructed by the client. A lawyer is prohibited from preparing on a client’s behalf an instrument that gives the lawyer any substantial gift, unless the lawyer is related to the client (e.g., if the lawyer is a spouse, child, grandchild, parent, or grandparent of the client). Here, the lawyer was not related to the client, and the proposed gift of $100,000 was substantial by any definition of the term. Thus, the lawyer was prohibited from preparing the will. If the client wants to make the gift to the lawyer, a different lawyer will need to prepare the will.
29
While a lawyer is still representing a client, may the lawyer negotiate an agreement giving the lawyer literary or media rights to a story based in substantial part on the representation?
No. While a lawyer is still representing a client, the lawyer may not make or negotiate an agreement giving the lawyer literary or media rights to a story based substantially on information relating to the representation. A lawyer’s acquisition of literary or media rights concerning the subject of the representation creates a risk that the lawyer’s professional judgment about what is best for the client will be compromised by the lawyer’s desire to make decisions that create a more salable story. A lawyer may not put herself in a situation where she is tempted to choose between those two concerns. However, this rule does not prevent a lawyer from accepting as a fee a share of literary property if the lawyer represents the client in a transaction involving that property. This rule applies both to an individual lawyer and to all lawyers in that lawyer’s firm.
30
In general, may a lawyer have sexual relations with a client?
No. In general, a lawyer may not have sexual relations with a client unless a consensual sexual relationship with the client predated the client-lawyer relationship. However, a lawyer should consider whether a preexisting sexual relationship might materially interfere with the lawyer’s ability to represent the client, which would create a material-limitation conflict of interest.
31
In general, may a lawyer provide financial assistance to a client in connection with pending or contemplated litigation?
No. Generally, a lawyer is prohibited from providing financial assistance to a client in connection with pending or contemplated litigation, except in two circumstances: ---a lawyer may advance court costs and litigation expenses and make repayment contingent on the outcome of the matter, and ---a lawyer representing an indigent client may pay court costs and litigation expenses on the client’s behalf regardless of whether the funds will be repaid. Allowing lawyers generally to subsidize their clients’ lawsuits or lend clients money for living expenses during litigation could encourage clients to pursue frivolous lawsuits and give lawyers too large a financial stake in the litigation. However, advancing court costs and litigation expenses subject to repayment does not present the same dangers, because these advances are similar to contingent-fee arrangements and help ensure access to the courts.
32
Must a lawyer obtain informed consent from a former client to later represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the former client’s interests?
Yes. A lawyer who has formerly represented a client in a matter must obtain written informed consent from the former client to later represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the former client’s interests. For purposes of this rule, a matter may be considered substantially related to the earlier matter if (1) it involves the same transaction or legal dispute, or (2) there is a substantial risk that confidential information from the prior representation would materially advance the new client’s position in the matter.
33
If a lawyer’s prior firm represented a client in a matter, are there ethical restrictions on the lawyer’s ability to represent a person in the same or a substantially related matter after leaving the firm?
Yes. If a lawyer’s prior firm represented a client in a matter, the lawyer must not knowingly represent a person in the same or a substantially related matter if (1) the interests of the prior firm’s client are materially adverse to that person; and (2) the lawyer knows material, confidential information about the prior firm’s client. These restrictions may be waived if the prior firm’s client gives written, informed consent. This rule disqualifies a lawyer only if she has actual knowledge of confidential information about the prior firm’s client. Thus, if a lawyer acquired no knowledge or information about a particular client, these restrictions do not apply.
34
Is a lawyer restricted from using information relating to the representation of a former client in the representation of a new client?
Yes. A lawyer is restricted from using information relating to the representation of a former client in the representation of a new client. Specifically, a lawyer who has formerly represented a client in a matter, or whose present or former firm has formerly represented a client in a matter, must not: ---use information relating to that representation to the former client’s disadvantage, unless the rules of professional conduct permit or require it, or the information has become generally known or ---reveal information relating to the representation, except as permitted or required by the rules of professional conduct. The former client may waive these provisions by giving written, informed consent.
35
While serving as a state prosecutor, a lawyer prosecuted a man for driving while intoxicated (DWI). After the lawyer stopped working as a prosecutor, he opened a criminal-defense practice. The state subsequently charged the man with committing a robbery that was unrelated to the DWI charge. The man asked the lawyer to represent him. May the lawyer represent the man in the robbery case?
Yes. The lawyer may represent the man. Generally, a lawyer who has represented a client in a matter is prohibited from later representing another person in the same or a substantially related matter in which the other person’s interests are materially adverse to the first client’s. A matter is substantially related if: ---it involves the same transaction or legal dispute, or ---there is a substantial risk that confidential factual information from the prior representation would materially advance the new client’s position. Here, the robbery charge and the DWI are different legal disputes, and the unconnected charges present little or no risk that confidential information from the DWI prosecution would advance the man’s position in the robbery case. Thus, even though the lawyer already represented the opposing party (i.e., the state), the robbery is unrelated, and the lawyer may represent the man.
36
Under the MRPC, what is the definition of a prospective client?
Under the MRPC, a prospective client is a person who consults with a lawyer about potentially forming a client-lawyer relationship with respect to a legal matter. Whether a communication is a consultation will depend on the circumstances. In broad terms, a person who communicates with a lawyer about a matter at the lawyer’s invitation, and without clear advance warnings about any restrictions on the potential relationship, has consulted the lawyer. On the other hand, a person who unilaterally sends information to a lawyer in response to general lawyer advertising has not consulted the lawyer.
37
Is a lawyer restricted from using information learned from a prospective client?
Yes. A lawyer who has learned information from a prospective client may not use or reveal that information except to the same extent allowed with respect to a former client’s information. In other words, the lawyer may not use that information to the disadvantage of the prospective client, unless (1) the rules of professional conduct would permit or require it with respect to a client, or (2) the information has become generally known. Nor may the lawyer reveal that information except to the extent authorized by the rules of professional conduct.
38
In considering whether to take on a representation, should a lawyer limit the scope of the initial consultation with the prospective client to avoid acquiring potentially disqualifying information?
Yes. A lawyer who is considering whether to take on a representation should limit the initial consultation to the information reasonably needed to assess whether the lawyer wishes to do so or would have a conflict of interest. As soon as it appears that the lawyer will not take on the representation, the lawyer should either inform the prospective client of the reason for declining or simply decline the representation.
39
What does it mean to screen a lawyer from participating in a matter within a law firm?
To screen a lawyer from a matter means that the law firm will isolate the lawyer from any involvement with the matter as a way to avoid a conflict of interest. Effective screening requires the firm to use timely procedures that are reasonably adequate to protect information possessed by the isolated lawyer. In other words, the purpose of screening is to prevent the screened lawyer from revealing client confidences or other protected information. The exact procedures needed for screening may vary, but at a minimum the screened lawyer and any lawyers in the firm who are working on the matter should be informed of the need for screening and the procedures that will be applied.
40
If a lawyer receives information from a prospective client that could be significantly harmful to that person in a matter, is the lawyer generally permitted to represent a client with materially adverse interests to the prospective client in the same or a substantially related matter?
No. In general, if a lawyer receives information from a prospective client that could be significantly harmful to that person in a matter, the lawyer may not represent a client with materially adverse interests to that prospective client in the same or a substantially related matter. This rule also applies to the lawyer’s firm. However, this rule does not apply if: ---both the affected client and the prospective client give written, informed consent to the representation; or ---the lawyer who received the potential client’s information took reasonable steps to limit the information to what was reasonably necessary to decide whether to represent the prospective client, the lawyer is screened from the matter and receives no part of the fee, and written notice is given to the prospective client with a description of the subject of the consultation and the screening measures used.
41
Before meeting with a prospective client, may a lawyer condition the meeting on the prospective client’s informed consent that no information provided by the prospective client will restrict the lawyer from representing a different client in the matter?
Yes. A lawyer is permitted to place a condition on a consultation with a prospective client requiring the prospective client to give informed consent that no information the prospective client provides during the consultation will restrict the lawyer from representing a different client in the matter. The lawyer may also request the prospective client’s express informed consent for the lawyer’s subsequent use of information received from the prospective client, even though use of that information is otherwise prohibited by the rules of professional conduct. If the prospective client does not want to agree to the lawyer’s conditions, the prospective client may choose not to have the consultation with the lawyer.
42
Yes. A lawyer is permitted to place a condition on a consultation with a prospective client requiring the prospective client to give informed consent that no information the prospective client provides during the consultation will restrict the lawyer from representing a different client in the matter. The lawyer may also request the prospective client’s express informed consent for the lawyer’s subsequent use of information received from the prospective client, even though use of that information is otherwise prohibited by the rules of professional conduct. If the prospective client does not want to agree to the lawyer’s conditions, the prospective client may choose not to have the consultation with the lawyer.
No. The lawyer may not represent the wife. If a lawyer receives information from a prospective client that could be significantly harmful to that person in a matter, the lawyer generally must not represent a client with materially adverse interests to the prospective client in the same or a substantially related matter. One exception to this rule is if the prospective client and the new client give informed consent to the representation. Here, the man and his wife had materially adverse interests in the divorce matter. The man (a prospective client) told the lawyer about his affair, which is significantly harmful information to the man in the matter. The man did not consent to the lawyer representing his wife; rather, he objected. Thus, the lawyer may not represent the wife.
43
In general, if lawyers are associated in a firm, may any of them knowingly represent a client if any one of the lawyers practicing alone would be prohibited from doing so because of that lawyer’s duty to former or current clients?
No. In general, no lawyer in a firm may knowingly represent a client if any one of them alone would be prohibited from doing so because of a duty to former or current clients. There are two exceptions to this prohibition, which allow representation if: ---the disqualification is based on a lawyer’s personal interest and does not present a significant risk of materially limiting representation by the firm’s other lawyers, or ---the basis of the disqualification is a lawyer’s duty to a former client and arises out of the lawyer’s association with a prior firm. If the second exception applies, the firm must screen the disqualified lawyer from participation in the matter and ensure that he receives no part of the corresponding fee. In addition, affected former clients must be provided written notification of these steps and certifications of compliance with the ethical rules and screening procedures.
44
If a law firm takes on a representation that one of the firm’s lawyers would be prohibited from taking because of that lawyer’s duty to a current or former client, what must be included in the written notice provided to any affected former client to allow that client to ascertain the firm’s compliance with the rules of professional conduct?
If a law firm takes on a representation that one of the firm’s lawyers would be prohibited from taking because of that lawyer’s duty to a current or former client, the written notice provided to any affected former client must include: ---a description of the procedures used to screen the disqualified lawyer from participating in the matter, ---a statement of the firm’s and of the screened lawyer’s compliance with the rules of professional conduct, ---a statement that review may be available before a tribunal, and ---an agreement by the firm to respond promptly to any written inquiries or objections by the affected former client about the screening procedures. This written notice requirement is intended to demonstrate to any affected former clients that the representation will not harm their interests.
45
After a lawyer has terminated an association with a firm, under what circumstances is the firm prohibited from representing a client with interests materially adverse to those of a client represented by the formerly associated lawyer?
After a lawyer has terminated an association with a firm, the firm is not prohibited from representing a client with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm unless: ---the matter is the same as or substantially related to the matter in which the formerly associated lawyer represented the client, and ---any lawyer remaining in the firm has information material to the matter that is protected by the lawyer’s duty to maintain confidentiality. However, the affected client may provide informed consent to the representation.
46
While a lawyer worked at a law firm, she represented a contractor in a construction dispute against a builder. During the representation, the lawyer left the firm and continued to represent the contractor in the dispute. Several lawyers who had worked on the dispute remained at the firm and retained confidential information material to the matter. The builder then asked the firm to represent him in the dispute. The contractor was unwilling to consent to this representation. May the firm take on the representation of the builder?
No. The firm may not represent the builder. Without the affected client’s informed consent, a firm may not represent a new client with interests materially adverse to those of a client represented by a lawyer formerly at the firm if: ---the matter is the same as or substantially related to the matter in which the formerly associated lawyer represented the client, and ---any lawyer remaining in the firm has material information that is protected by the lawyer’s duty to maintain confidentiality. Here, the construction dispute is the same matter in which the lawyer represented the contractor while the lawyer was at the firm, and the builder’s interests are materially adverse to the contractor’s. Many lawyers who remained at the firm have material information protected by the duty of confidentiality. The contractor did not consent to the representation. Thus, the firm may not represent the builder.
47
In general, may a lawyer acquire a proprietary interest in a cause of action or litigation in which the lawyer represents the client?
No. In general, a lawyer who is conducting a litigation for a client is prohibited from acquiring a proprietary interest in the cause of action or the subject matter of the litigation. This rule is to prevent the lawyer from acquiring too great an interest in the matter, which could create a conflict of interest for the lawyer and make it difficult for the client to fire the lawyer if the client wishes. This rule applies both to an individual lawyer and to all lawyers in that lawyer’s firm. There are two exceptions to this rule: ---a lawyer may acquire an attorney’s lien as authorized by law to secure the lawyer’s fee or expenses, and ---a lawyer and client in a civil case may form a contract for a reasonable contingent fee.
48
A lawyer was representing a client in a lawsuit regarding injuries the client sustained in a car accident. The client did not have the funds to pay for the costs of litigation. At the outset of the representation, the lawyer agreed to pay the litigation costs. The lawyer and client agreed that if the client won the litigation, the lawyer would receive 10 percent of any damages awarded to the client in addition to the reasonable costs of litigation the lawyer expended on behalf of the client. If the client lost, the lawyer would not recoup his litigation expenses. Has the lawyer violated his ethical duties by setting up this payment structure?
No. The lawyer has not violated his ethical duties. Although a lawyer generally may not acquire a proprietary interest in a cause of action or the subject matter of a litigation the lawyer is conducting for a client, one exception to this rule is that a lawyer and client may agree to a reasonable contingent fee in a civil case. Furthermore, though a lawyer is generally prohibited from providing financial assistance to a client in connection with pending or contemplated litigation, a lawyer may advance the client court costs and litigation expenses with repayment contingent on the outcome of the matter. Here, the lawyer agreed to advance the expenses and take a 10 percent contingent fee if the client won the case. The lawyer is permitted to advance the expenses in this manner, and a 10 percent contingent fee is very likely reasonable. Thus, the lawyer has not violated his ethical duties.
49
In general, may a lawyer enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client?
No. In general, a lawyer may not enter into a business transaction with a client or knowingly acquire an ownership or other pecuniary interest adverse to a client. This rule also applies to all lawyers in that lawyer’s firm. However, this prohibition does not apply if: ---the terms of the transaction or acquisition are fair and reasonable to the client and are fully disclosed to the client in writing in a manner that the client can reasonably understand; ---the client is advised in writing of the importance of obtaining advice from independent counsel and is given a reasonable opportunity to obtain that advice; and ---the client gives informed consent, in a signed writing, to the transaction’s essential terms and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.
50
Does the prohibition on a lawyer entering a business transaction with a client apply to ordinary commercial transactions with a client in the course of the client’s business?
No. The general prohibition on a lawyer entering a business transaction with a client does not apply to a standard commercial transaction between the lawyer and a client for products or services that the client generally markets to others. In that case, the lawyer has no advantage in dealing with the client, and the restrictions on the lawyer are unnecessary.
51
If a lawyer enters into a business transaction with a client, do the MRPC impose heightened responsibilities if the lawyer simultaneously represents the client in that transaction?
Yes. The MRPC impose heightened responsibilities on a lawyer who enters a business transaction with a client while simultaneously representing the client in that transaction. In this situation, the lawyer must obtain the client’s informed consent after disclosing the risk of conflict associated with the lawyer’s dual role as legal adviser and participant in the transaction (e.g., that the lawyer may structure the transaction or give legal advice in a way that favors the lawyer’s interests over the client’s). In some situations, the conflict of interest may be so severe as to be nonconsentable.
52
A lawyer was drafting a will for a client. During one of their meetings, the lawyer learned that the client needed money to open an ice-cream parlor. The lawyer offered to lend the client the necessary money. The client accepted the lawyer’s offer. Must the lawyer comply with the ethical rules for entering into a business transaction with a client with respect to this loan?
Yes. The lawyer must comply with the ethical rules. In general, for a lawyer to enter into a business transaction with a client, the lawyer must: ---ensure the transaction and terms are fair to the client and fully disclosed to the client in writing; ---provide the client an opportunity to seek advice from independent legal counsel; and ---obtain the client’s written, signed informed consent to the transaction’s essential terms and the lawyer’s role. These requirements generally must be met if a lawyer enters into a business, property, or financial transaction with a client, even if the transaction is not closely related to the subject matter of the representation. Here, the loan was for the client’s ice-cream parlor and was unrelated to the will representation. However, it was nonetheless a business transaction between the lawyer and the client. Thus, the lawyer must comply with the ethical rules.
53
A lawyer was drafting trust documents for a client, who was a plastic surgeon. At a meeting, the client described the types of nose jobs she typically performed. The lawyer decided that he would like the client to operate on his own nose. The client agreed to perform the surgery on the lawyer’s nose and did so the next day. The lawyer subsequently finished the trust documents. Was the lawyer’s purchase of the surgeon’s services subject to the ethical rules for entering into a business transaction with a client?
No. The purchase was not subject to the ethical rules about transactions with clients. Although a lawyer generally must meet specific requirements to enter into a business transaction with a client (i.e., ensuring the terms are fair and disclosed to the client, providing the client the opportunity to seek independent counsel, and obtaining informed consent), these requirements do not apply to a standard commercial transaction between the lawyer and a client for products or services that the client generally markets to others. In that case, the lawyer has no advantage in dealing with the client and the restrictions on the lawyer are unnecessary. Here, although the client operated on the lawyer’s nose, this was a service that the client generally marketed to others as a plastic surgeon. Thus, the ethical restrictions on the lawyer did not apply to this standard commercial transaction.
54
In general, may a lawyer accept compensation for a representation from someone other than the client?
No. In general, a lawyer may not accept compensation for a representation from someone other than the client. This arrangement presents the danger that the lawyer will be influenced in her professional judgment and loyalty by the person paying the fee instead of by the client. This prohibition applies both to an individual lawyer and to all lawyers in that lawyer’s firm. However, the lawyer may accept third-party payment if: ---the client gives informed consent, --the fee arrangement does not interfere with the lawyer’s independent professional judgment or other aspects of the client-lawyer relationship, and ---the lawyer protects all information related to the representation as required by the general rules of client confidentiality.
55
A woman was arrested for driving while intoxicated. The woman’s mother, worried for her daughter’s future, met with a lawyer who had a great deal of experience defending against criminal driving-while-intoxicated charges. The lawyer informed the woman’s mother that the lawyer’s retainer would be $3,000. The woman’s mother paid the $3,000 retainer, and the lawyer commenced the representation. The woman did not attend the meeting or discuss the representation with either her mother or the lawyer before her mother engaged the lawyer. Did the lawyer improperly commence the representation of the woman?
Yes. The lawyer improperly commenced the representation of the woman. Because third parties paying for a representation may have different interests from the client (e.g., minimizing the amount spent on the representation), a lawyer must not accept compensation for representing a client from someone other than the client, unless: ---the client gives informed consent; ---there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and ---information related to the representation is protected as required by the lawyer’s duty of confidentiality. Here, the lawyer accepted the $3,000 retainer from the mother and commenced the representation of the woman without first obtaining the woman’s informed consent to the arrangement. Thus, the lawyer improperly commenced the representation
56
If a lawyer determines that a third party who is paying for the representation of a client has interests that differ from those of the client, what must the lawyer do?
If a third party who is paying for the representation of a client (i.e., a third-party payer) has interests that differ from those of the client, the lawyer must: ---ignore the third-party payer’s wishes and follow the client’s instructions or ---withdraw from the representation.
57
A lawyer’s father-in-law recommended the lawyer to a man, and the man retained the lawyer. The lawyer’s father-in-law then contacted the lawyer and explained to the lawyer that it was very important for the man to decide to enter into a business transaction with the father-in-law. May the lawyer take the father-in-law’s wishes into account in the representation of the man?
No. The lawyer must not take the father-in-law’s wishes into account. If someone other than the client pays the lawyer or recommends employment of the lawyer, the lawyer still must fulfill her obligations to the client without being influenced by the third party’s actions. Instead, the lawyer must maintain her own professional independence. This means not allowing the third party to regulate the lawyer’s professional legal judgment in any way. Here, the father-in-law recommended the lawyer to the man, but this does not give the father-in-law the right to interfere with the lawyer’s representation of the man and the lawyer’s independent legal judgment. Thus, the lawyer must not allow the father-in-law’s wishes to interfere with the lawyer’s advice to the man and must instead give the man a professional opinion based solely on the lawyer’s legal assessment of the man’s best interests.
58
In general, may a lawyer who formerly served as an employee of the government subsequently represent a client in connection with a matter in which the lawyer personally and substantially participated while working for the government?
No. In general, a lawyer who formerly served as a public officer or government employee is prohibited from representing a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee. This prohibition applies unless the appropriate government agency gives its informed consent, in writing, to the representation. The term “personally and substantially” is used to distinguish a lawyer who actually worked on a matter from one who did not, e.g., a lawyer who had administrative responsibility for the office in which a matter was pending but who did not take a role in the matter itself.
59
In general, if a former government lawyer is disqualified from representing a client in connection with a matter that the lawyer worked on while in government, is the lawyer’s law firm likewise disqualified?
Yes. In general, if a former government lawyer is disqualified from representing a client in connection with a matter that the lawyer worked on while in government, the lawyer’s law firm is likewise disqualified. However, this disqualification may be avoided if: ---the lawyer is screened from participating in the matter and receives no part of the fee, and ---the firm gives prompt written notice to the relevant government agency to enable the agency to determine compliance with this rule.
60
For purposes of determining whether a lawyer who was a government employee or public officer is able to represent a private client, what is meant by the term confidential government information?
The term confidential government information means information obtained under governmental authority that (1) the government may not legally disclose to the public, or (2) the government is privileged to withhold from the public and which in either case (3) is not otherwise available to the public.
61
If a lawyer acquires confidential government information about a person while the lawyer is working as a government employee or public officer, is the lawyer restricted from later representing a client who is adverse to that person?
Yes. If a lawyer acquires confidential government information about a person while working as a government employee or public officer, the lawyer is prohibited from later representing a client who is adverse to that person in a matter in which the information could be used to the material disadvantage of that person. This prohibition extends to the lawyer’s firm, unless (1) the lawyer is screened from participating in the matter and (2) receives no part of the fee.
62
A government lawyer oversaw an investigation into a business for alleged improper disposal of toxic waste. As part of the investigation, the government lawyer learned that a contractor oversaw the improper dumping and also learned information about the contractor that qualified as confidential government information. The government lawyer subsequently left the government and began working at a firm. The firm was contacted by a woman who wanted the firm’s assistance in suing the contractor for harms inflicted upon the woman as a result of the contractor’s oversight of the improper dumping of toxic waste. Is it possible for the firm to take on the representation of the woman?
Yes. It is possible for the firm to represent the woman. If a lawyer acquired confidential government information about a person when the lawyer was a government employee, the lawyer may not subsequently represent a private client whose interests are adverse to that person in a matter in which the information could be used to that person’s material disadvantage. However, a firm with which the lawyer is associated may represent the client if the lawyer is properly screened from any participation in the matter and receives none of the fee. Here, the government lawyer learned confidential information about the contractor when the lawyer worked with the government, the woman’s interests were adverse to the contractor’s, and the information could disadvantage the contractor. Thus, the firm may represent the woman, but only if the lawyer is screened from the matter and receives none of the fee.
63
In general, is a lawyer serving as a public officer or government employee subject to the normal duties of confidentiality regarding former and prospective clients?
Yes. In general, a lawyer who is serving as a public officer or government employee is subject to the normal duties of confidentiality regarding former and prospective clients. These rules are not altered by the lawyer entering government service.
64
In general, may a lawyer serving as a public officer or government employee work on a matter while in government in which the lawyer participated before entering government?
No. In general, a lawyer who is serving as a public officer or government employee may not participate in a matter on which the lawyer personally and substantially participated before entering government. This prohibition applies unless the appropriate government agency gives its informed consent, in writing, to the lawyer’s participation.
65
In general, may a lawyer serving as a public officer or government employee negotiate for private employment with a party or a lawyer in a matter in which the lawyer is participating?
No. In general, a lawyer who is serving as a public officer or government employee may not negotiate for employment with a party or a lawyer in a matter in which the lawyer is personally and substantially participating. However, this prohibition does not apply to a lawyer working as a law clerk for a judge, arbitrator, or other adjudicative officer, provided that the clerk notifies the judge or other officer of the negotiations.
66
A government lawyer was overseeing an investigation into a business for improper dumping of toxic waste. The opposing lawyer worked at a prestigious private law firm in town and represented the business in the governmental investigation run by the government lawyer. The opposing lawyer came to respect the government lawyer and asked whether the government lawyer would come work at the opposing lawyer’s firm. The opposing lawyer offered him a lucrative salary. The government lawyer asked for the lucrative salary plus additional benefits. Has the government lawyer committed an ethical violation?
Yes. The government lawyer has committed an ethical violation. A lawyer currently serving as a government employee may not negotiate for private employment with a lawyer for a party in a matter in which the government lawyer is participating personally and substantially. An exception to this rule concerns law clerks working for judges or other adjudicative officers, who may seek private employment. Here, the government lawyer was personally and substantially participating in the investigation into the opposing lawyer’s client. Accordingly, he was not allowed to negotiate for private employment with the opposing lawyer. Although the government lawyer could not prevent the opposing lawyer from offering him a job, he began the process of negotiating for private employment when he requested the offered salary plus benefits. Thus, the government lawyer committed an ethical violation.
67
In general, may a lawyer represent a client in a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, as a law clerk to a judge or other adjudicative officer, or as a third-party neutral (e.g., an arbitrator or mediator)?
No. In general, a lawyer may not represent a client in a matter in which the lawyer personally and substantially participated as: ---a judge or other adjudicative officer; ---a law clerk to a judge or other adjudicative officer; or ---a third-party neutral, such as an arbitrator or mediator. However, this prohibition does not apply if all parties to the proceeding give written, informed consent to the representation.
68
In general, if a lawyer is disqualified from a matter because of the lawyer’s work as a judge, other adjudicative officer, third-party neutral, or law clerk, is the lawyer’s firm also disqualified?
Yes. In general, the disqualification of a lawyer due to the lawyer’s prior work as a judge, adjudicative officer, third-party neutral, or law clerk extends to the lawyer’s firm. Thus, no lawyer in the firm may knowingly continue or undertake representation in the matter. However, this prohibition may be avoided if: --the disqualified lawyer is screened from participating in the matter and receives no part of the fee, and ---prompt written notice is given to the parties and to any relevant tribunal to enable them to determine compliance with this rule.
69
May a lawyer negotiate for employment with a party or a lawyer in a matter in which the lawyer is personally and substantially participating as a judge, adjudicative officer, or third-party neutral?
No. A lawyer may not negotiate for employment with a party or a lawyer in a matter in which the lawyer is personally and substantially participating as a judge, adjudicative officer, or third-party neutral (e.g., an arbitrator or mediator). However, this prohibition does not apply to a law clerk to a judge or other adjudicative officer, provided that the clerk first notifies the judge or officer of the negotiations.
70
What is a concurrent conflict of interest?
A concurrent conflict of interest is a conflict that exists if: ---the representation of one client will be directly adverse to another client; or ---there is a significant risk that the representation of a client will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person, or by the lawyer’s personal interest. The second of these two types of concurrent conflicts of interest is sometimes called a material-limitation conflict.
71
In general, may a lawyer represent a client if that representation would cause a concurrent conflict of interest?
No. In general, and subject to exceptions, a lawyer may not represent a client if that representation would cause a concurrent conflict of interest. In this situation, a lawyer is said to be disqualified from the representation. If the conflict is known before the lawyer begins to represent a client, then the lawyer generally must decline the representation. If the conflict arises during the representation, then the lawyer generally must withdraw from the representation. If the conflict of interest involves multiple clients, and the lawyer wishes to continue to represent any of those clients, the lawyer must evaluate whether he can continue the representation consistent with his obligations to the clients he will no longer be representing, such as the continuing obligation of confidentiality.
72
Under what circumstances may a lawyer represent a client notwithstanding a concurrent conflict of interest?
A lawyer may represent a client notwithstanding a concurrent conflict of interest if: ---the lawyer reasonably believes that she will be able to represent each affected client competently and diligently, ---the representation is not prohibited by law, ---the representation does not involve one client asserting a claim against another client represented by the lawyer in the same litigation or other proceeding, and ---each affected client gives written informed consent. To obtain informed consent, the attorney must make each affected client aware of the relevant circumstances and the material, reasonably foreseeable ways in which the conflict of interest could adversely affect the client’s interests. A conflict of interest that can be waived by a client’s informed consent is said to be consentable.
73
When is a lawyer prohibited from representing a client?
The representation would violate the Rules or other law; or The lawyer’s physical or mental condition would materially impair the lawyer’s ability to represent the client. Rule 1.2(b)
74
Can a lawyer take inconsistent legal positions in different tribunals at different times on behalf of different clients?
Generally yes. But, a conflict of interest exists if there is a significant risk that a lawyer’s action on behalf of one client will materially limit the lawyer’s effectiveness in representing another client in a different case. Rule 1.7, comment 24
75
Can a lawyer enter into a business transaction with a client, or knowingly acquire a possessory interest adverse to the client?
a No, unless: 1. The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted clearly in writing; 2. The client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and 3. The client gives written informed consent to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction. Rule 1.8(a)
76
Can a lawyer use confidential information obtained from a client to benefit the lawyer or third party?
Yes, unless the information disadvantages the client, in which case the client must give informed consent. Rule 1.8, comment 5
77
If a lawyer is representing two or more clients, does the lawyer need to disclose each individual’s settlement amount?
Yes, the lawyer must disclose all material terms of the settlement, including what each client will receive, and get written informed consent from each client. Rule 1.8(g)
78
Can a lawyer have a sexual relationship with a client?
No, unless a consensual relationship existed prior to the lawyer-client relationship. Rule 1.8(j)
79
When the lawyer is representing a corporation, does the prohibition on sexual contact apply? (i.e. Is a lawyer prohibited from having sexual relations with employees of an organization they are representing?)
Prohibition only applies to those who supervise, direct or regularly consult with the lawyer concerning the organization’s legal matters. Rule 1.8, comment 19
80
Can an attorney solicit or prepare a will that gives a substantial gift to the attorney?
No, unless the client is someone with whom the lawyer maintains a close, familial relationship. Rule 1.8(c)
81
Can lawyers solicit substantial gifts from clients?
No, but they can receive simple gifts (presents given at a holiday or as a token of appreciation) as long as they meet the general standards of fairness. Rule 1.8, comment 6
82
Can a lawyer acquire literary or media rights for a pending representation?
No because it creates a conflict between the interests of the client and the personal interests of the lawyer. Rule 1.8, comment 9 ⚠️ Note: The lawyer can, however, represent the client in a transaction concerning literary property and have the lawyer’s fee consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and paragraphs 1.8(a)and (i).
83
What is the lawyer required to do if opposing counsel is a close relative?
Withdraw from the case unless the client gives informed consent. Rule 1.7, comment 11
84
Can a lawyer represent two parties in the same litigation (i.e. on the opposite side of the “v”) if they obtain informed consent?
No, a lawyer may not represent opposing parties in the same litigation, regardless of the clients’ consent. Rule 1.7, comment 23
85
When does a concurrent conflict of interest exist?
If: 1. The representation of one client will be directly adverse to another client; or 2. There is a significant risk that the representation will be materially limited by the lawyer’s personal interests or responsibilities to another client/third party Rule 1.7(a)
86
When can a lawyer still represent a client if a concurrent conflict of interest exists?
If: 1. The lawyer reasonably believes that they will be able to provide competent and diligent representation to each affected client; 2. The representation is not prohibited by law; 3. The representation does not involve two clients directly adverse to one another in the same proceeding; and 4. Each affected client gives written informed consent Rule 1.7(b)
87
What must the client be aware of to give proper informed consent?
1. The relevant circumstances and material; 2. The reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. See Rule 1.0(e)(informed consent)
88
What type of writing does informed consent require?
Either a document executed by the client or one that the lawyer promptly records and transmits to the client following an oral consent. Rule 1.0(b)
89
Does simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation constitute a conflict of interest?
a Generally no, and as such, client informed consent is not needed.

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