Conflicts of Interest Flashcards
CANNOT accept representation if . . .
1- representation is materially adverse to another client; OR
2- there is a significant risk that representation will be materially limited by the lawyer’s personal interests or responsibilities
EXCEPTION [must have all 4]
1- lawyer reasonably believes he can competently & diligently rep each client;
2- representation is not prohibited by law;
3- rep does not involve an assertion by one client against another repped by the lawyer; AND
4- each client gives written consent
General Rule of Imputation of Conflicts
if one lawyer is conflicted, all lawyers in the firm are conflicted even if they are located in another office of the firm. Client may waive disqualification.
Exception- if conflict is based on personal interest.
Lawyer as Witness
Lawyer shall not rep a client before a tribunal in a matter in which the lawyer is LIKELY to be a witness on a significant issue of fact, unless:
1- testimony relates to an uncontested matter; OR
2- testimony relates solely to value of legal services; OR
3- relates to a matter of formality (lawyer witnesses a will can testify as long as the signatures aren’t disputed); OR
4- disqualification would work a substantial hardship to the client; OR
5- authorized by a tribunal
Imputation of Lawyer as Witness Rule?
Conflict not imputed, BUT a lawyer can’t act as an advocate before a tribunal in a matter if another lawyer in the lawyer’s firm is likely to be called as a witness on a SIGNIFICANT ISSUE by ANOTHER PARTY to the suit AND it is apparent that the testimony may be PREJUDICIAL to the client.
Justification- hard to vigorously cross a co-worker
Interest in Media Rights Related to Subject Matter of Representation
Prior to the conclusion of the client’s entire matter, including any appeals, a lawyer is prohibited from entering into, or even negotiating, any arrangement or understanding with a client or a prospective client by which the lawyer acquires an interest in literary or media rights with respect to the subject matter of the representation or proposed representation, or transfers or assigns any such interest
Acquiring an Interest in the Subject Matter of the Litigation
A lawyer cannot acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
- acquire a lien authorized by law to secure his fees or expenses
- contract w/ client for a reasonable contingent fee in a civil matter
In DOMESTIC RELATIONS MATTERS a lawyers retainer agreement may include a security interest, confession of judgment, or other lien (property) to secure his fee, BUT ONLY IF:
- prior notice provided tot eh client in a signed retainer agreement; AND
- tribunal approves it; AND
- notice to the adversary
BUT lawyer cant foreclose on a mortgage placed on a marital residence while the client remains the titleholder and it is the primary residence
Providing Financial Assistance to the Client
While repping a client a lawyer cannot advance or guarantee financial assistance to the client.
EXCEPTIONS
- may advance court costs & expenses of litigation w/ repayment contingent on outcome
- lawyer repping indigent or pro bono may pay court costs and expenses of litigation outright and not elect to seek reimbursement
Food, bail, medical bills, rent ARE NOT expenses of litigation. (expert fees are).
Fee by third party
A lawyer cannot be paid by a third party unless:
- client gives informed consent;
- there is no interference w/ the lawyer-client relationship; AND
- confidential info is not provided to the third party
Sex w/ Clients
- cant demand as a condition of representation
- cant coerce client into having sex
- a lawyer in a DOMESTIC RELATIONS MATTER cant have sex w/ client during course of representation
- Even if an ongoing consensual sexual relationship predates the initiation of the client-lawyer relationship, and even in representations other than domestic relations matters, the lawyer may still have a conflict of interest in representing the client because her professional judgment on behalf of the client will likely be adversely affected by the lawyer’s own personal interests
Business Transactions w/ Client
- general rule
- exception
A lawyer cannot enter into a business transaction w/ a client if they have differing interests and the client expects the lawyer to exercise professional judgment for the benefit of the client
-EXCEPTION- transaction is fair & reasonable + terms disclosed in writing in a way client understands + client advised in writing that he should seek an independent lawyer + given reasonable opportunity to seek independent lawyer + client gives informed consent
BUT NOTE: lawyer can always do standard commercial or other ordinary business transactions which client markets to others b/c client not relying on the lawyer’s legal advice
Lawsuits Between CURRENT and FORMER clients
you may rep a current client in an action against a former client EXCEPT
- current wants to sue former in a matter substantially related to prior representation; OR
- you learned confidential info about former that is now relevant in action by current (unless now generally known to the public)
FORMER CLIENT CAN CONSENT IN WRITING
Can you ever represent a current client against another current client? Perhaps on an unrelated matter?
NO, NEVER NEVER NEVER!!
UN-CONSENTABLE!!
If a lawyer for an organization knows that an officer/employee/etc is engaged in action, or intends to act, that is a violation of a law that reasonably might be imputed to the organization AND is likely to result in substantial injury to the org, the lawyer shall . . .
Proceed as is reasonably necessary in the best interest of the org.
Reasonable measures include:
a. asking reconsideration of thematter;
b. advising that a separate legal opinion on the matter be sought for presentation to an appropriate authority in the organization; and
c. referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law
Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing confidential information to persons outside the organization
If the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly in violation of law and is likely to result in a substantial injury to the organization, the lawyer may reveal confidential information if permitted by the exceptions to confidentiality, and may seek to withdraw
If it appears that the organization’s interests may differ from those of the constituents w/ whom the lawyer is dealing, the lawyer shall . . .
UPJOHN WARNING
explain that the lawyer is the lawyer for the entity, and not any constituents
