Conflicts Issues in Particular Practice Settings - June 22 Flashcards
How does a lawyer know whether she needs to obtain informed consent? (Lerman)
The relevant question is whether an actual or a potential conflict is “reasonably apparent” to the lawyer. If the clients’ interests appear
entirely harmonious, there may be no need to obtain consent. If, on the other hand, the clients have some divergent interests or goals, or some tension is apparent in the communication between them, the lawyer should obtain their informed consent to be sure they understand the possible disadvantages of being represented by a single lawyer. (648)
Can a lawyer solve the possible conflict by limiting his services to drafting documents only, without giving advice? (Lerman)
No. If a lawyer undertakes joint representation of parties to a transaction, the lawyer should not regard himself as a “mere scrivener” who is simply recording their preferences. He should endeavor to provide the same range of services to each client as he would if he were representing only one of them. (649)
Can a lawyer keep confidences learned from one client from the other client? (Lerman)
A lawyer owes both clients a duty of loyalty, which might be compromised if the lawyer keeps secrets from either one of them. (649)
If the two clients wind up in litigation against one another, does the lawyer have to withdraw altogether, or can the lawyer represent one against the other? (Lerman)
If a conflict develops that will lead to litigation, the lawyer may not continue to represent both (or all) of the clients because that would involve the lawyer in suing one client on behalf of another in an adversarial situation. (650)
What model rule deals with organizations as clients? (Lerman)
Model rule 1.13. (652)
Does the lawyer for an organization represent only the organization or are the officers, subsidiaries, and other affiliates of the organization also clients? (Lerman)
Rule 1.13(a) provides that “[a] lawyer employed or retained by an organization represents the organization. . . .” Thus, a lawyer who represents a corporation does not automatically represent officers, shareholders, or employees of the corporation, or other corporations owned (in part or whole) by the corporation. (655)
Can a lawyer who represents a corporation provide legal services to individual employees or other constituents of the organization? (Lerman)
A lawyer in private practice who represents an organization may represent a member or an employee of the organization unless the
interests of the organization and the individual conflict. If they do, and if the conflict is consentable, the lawyer may proceed only with the consent of the affected parties. (658)
What should a lawyer do if an officer or employee of an organization threatens to do something illegal or something that would harm the organization? (Lerman)
In the course of representing an organization, a lawyer might learn that an officer or employee has done something or is planning to do something that is illegal or that would cause harm to the organization. (660)
Do the principles that apply to representation of for-profit corporations also apply to representation of nonprofit corporations and other organizations? (Lerman)
Yes. Rule 1.13 applies whether the lawyer is representing a business or another type of organization. (662)
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? (Q)
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.
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? (Q)
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.
