Conflicts Flashcards
May a client revoke the client’s informed consent to a lawyer’s conflict of interest?
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.
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?
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.
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)
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)
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 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.
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
Is an arbitrator selected as a partisan of a party in a multimember arbitration panel prohibited from subsequently representing that party?
No. Rule 1.12(d).
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?
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)
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?)
No, unless all parties give written informed consent. Rule 1.12
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?
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)
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?
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).
Can a disqualification under Rule 1.10 be waived by the affected client?
Yes, but this is rare.
Rule 1.10(c).
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?
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)
Can a partner receive compensation directly related to a matter from which they are disqualified?
No. Rule 1.10.
If a new lawyer is properly screened in accordance with the model rules, what happens if the former client still objects?
As long as the new lawyer was properly screened, client objection is irrelevant because consent wasn’t required, only notice.
Rule 1.10
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?
- 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)
In general, may a lawyer properly ask a client to waive potential future conflicts of interest?
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.
May a lawyer represent multiple clients who are asserting claims against one another in the same litigation if the clients give informed consent?
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.
Under the model rules, should a lawyer ordinarily agree to represent multiple defendants in a criminal case?
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.
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?
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.
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?
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.
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?
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.
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?
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.
May a lawyer disclose information relating to the representation of a current or former client in assessing conflicts of interest?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
