Conflicts of Interest

Question 1

General overview of conflicts of interest

Answer 1

Most commonly litigated malpractice issue

Generally arises when a lawyer can’t freely exercise a recommended course of action to a client because of a conflicting duty to someone else

No absolute prohibit on conflicts, but they are regulated

Question 2

When does a CoI exist?

Answer 2

When:

(a) the representation of 1 client will be directly adverse to another client, or
(b) there is a significant risk that the representation of 1 or more clients will be materially limited by the lawyer’s responsibilities to another client, former client, or 3rd person (personal interest of lawyer)

Question 3

How to move forward given the presence of a CoI? [4 elements]

Answer 3

(1) the lawyer reasonably believes that the lawyer 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 the assertion of a claim by 1 client against another repped by the lawyer in the same litigation or other proceeding
(4) each affected client gives informed consent, confirmed in writing

Question 4

What to do if conflict arises AFTER representation has been undertaken?

Answer 4

Ordinarily the lawyer must withdrawal (it does NOT matter if client gives informed consent; there is limited representation regardless)

Question 5

Can a lawyer represent 2 clients who are adverse parties in mediation?

Answer 5

Yes, Comment 17 to R.1.7(b)(3) does not preclude representation in mediation

Question 6

Can clients revoke consent under Rule 1.7(b)(4)?

Answer 6

Yes

Question 7

Can a lawyer aggregate settlements?

Answer 7

R.1.8(g) only if each client gives written, informed consent AND the lawyer includes the existence and nature of all the claims/pleas involved and the participation of each person in the settlement in the lawyer’s disclosure

Question 8

What are the ramification for conflicted representation?

Answer 8

(1) disqualification

(2) civil liability

Question 9

Can a lawyer acquire an ownership, possessory, security, or other pecuniary interest adverse to client?

Answer 9

Yes under R.1.8 ONLY IF:

1) the terms are fair and reasonable
(2) the client is advised and given opportunity to see advice of independent counsel, AND
(3) the client gives informed written consent

Question 10

Can a lawyer accept a gift?

Answer 10

Yes, as long as it meets the general standards of fairness

Question 11

Can a lawyer make/negotiate an agreement for literary or media rights prior to the conclusion of representation of a client?

Answer 11

No under R.1.8(d) if it is based in substantial part of info related to the representation

Question 12

Can a lawyer have a sexual relationship with a client?

Answer 12

Not unless the consensual sexual relationship existed prior to the AC relationship (must have direct sexual contact with client)

Question 13

Do conflicts apply to all lawyers in a firm?

Answer 13

Under R.1.8(k) yes, unless it was a sexual conflict

Question 14

Can a lawyer act as advocate in a trial where they are likely to be a witness?

Answer 14

Under R.3.7 no UNLESS:

(a) testimony relates to an uncontested issue
(b) testimony relates to the nature and value of legal services rendered in the case, OR
(c) disqualification of the lawyer would work substantial hardship on the client

Question 15

Can a lawyer at the same firm act as an advocate in a case where another lawyer in the firm will be called as a witness?

Answer 15

Yes, unless precluded from doing so under R.1.7 and R.1.9

Question 16

Can a lawyer represent a client in the same or substantially related matter where the client’s interests are materially adverse to the interests of a former client?

Answer 16

No, under R.1.9 UNLESS the client gives informed consent in writing