conflicts of interest Flashcards
basic rule
a lawyer shall not represent a client if a reasonable lawyer would conclude that either:
1) representation will involve lawyer in representing differing interests, OR
2) there is a significant risk that lawyer’s professional judgment on behalf of client will be adversely affected by lawyer’s own financial, business, property, or other personal interests
if either #1 or #2 arises, lawyer can accept case only if:
a) lawyer reasonably believes she can competently represent all affected clients
b) representation is not prohibited by law
c) representation does not involve assertion of claim by one client against another
d) each client gives written informed consent to conflict
TIP: virtually never permissible to represent co-Ds in criminal case; in civil cases, cannot represent multiple Ds who have cross-claims against each other
imputation of conflicts
generally, if one lawyer is conflicted, all lawyers in firm are conflicted even if in another office of firm
lawyer as witness
a lawyer shall not represent a client before a tribunal in a matter in which lawyer is likely to be a witness on a significant issue of fact unless:
1) testimony relates to an uncontested matter
2) testimony relates solely to value of legal services
3) relates to matter of formality
4) disqualification would work a substantial hardship on client, OR
5) testimony is authorized by a tribunal
conflict not imputed to other lawyers in firm, BUT a lawyer may not 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 lawsuit, and it is apparent that the testimony may be prejudicial to client
interest in media rights related to subject matter of representation
prior to conclusion of 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 prospective client by which lawyer acquires an interest in literary or media rights with respect to subject matter of representation or proposed representation, or transfers or assigns any such interest
acquiring interest in SM of representation
a lawyer cannot acquire a proprietary interest in cause of action or subject matter of litigation lawyer is conducting for client, except that lawyer may:
1) acquire a lien authorized by law to secure lawyer’s fees or expenses (ie charging lien that runs with file); AND
2) contract with a client for a reasonable contingent fee in civil matter
NOTE: in domestic relations matters, a lawyer’s retainer agreement may include a security interest, confession of judgment, or other lien, such as a lien on real property, to secure the lawyer’s fee, but ONLY IF:
a) prior notice is provided to client in signed retainer agreement
b) judge/tribunal approves it
c) after notice to adversary
BUT an atty shall not foreclose on a mortgage placed on a marital residence while spouse who consents to mortgage remains titleholder, and it is the primary residence
providing financial assistance to client
while representing a client in connection with contemplated or pending litigation, a lawyer cannot advance or guarantee financial assistance to client
Exceptions:
1) a lawyer may advance court costs and expenses of litigation and the repayment of which may be contingent on outcome of matter
2) a lawyer representing an indigent or pro bono client may pay court costs and expenses of litigation on behalf of client outright, and not elect to seek reimbursement
a lawyer representing a client in pending or contemplated litigation may not advance or guarantee assistance for client’s bail, medical bills, or rent
fee payment by 3P
a lawyer cannot accept compensation for representing a client, or anything of value related to lawyer’s representation of client, from one other than client unless:
1) client gives informed consent
2) there is no interference with lawyer-client relationship; AND
3) confidential info is not provided to payor
Ex.: in NY, insured (not insurer) is client –so even if insurer is involved, ignore insurer to represent client insured competently
sexual relations with clients
lawyers cannot demand sexual relations as a condition of representation
sexual relations = intercourse, touching intimate part of lawyer or another person for purpose of sexual arousal or sexual gratification or sexual abuse
lawyers cannot employ coercion, intimidation, or undue influence entering into sexual relations incident to any professional representation by lawyer or lawyer’s firm
a lawyer in a domestic relations matter cannot enter into sexual relations with client during course of representation
even if an ongoing relationship predates initiation of client-lawyer relationship, and even in representations other than domestic relations matters, lawyer may still have a conflict of interest in representing the client because her professional judgment on behalf of client will likely be adversely affected by lawyer’s own personal interests
business transactions with clients
a lawyer cannot enter into a business transaction with a client if they have differing interests therein and if client expects lawyer to exercise professional judgment therein for benefit of client
UNLESS:
1) transaction is fair and reasonable to client and terms of transaction are disclosed in writing in a manner that can be reasonably understood by client;
2) client is advised in writing of desirability of seeking (and given reasonable opportunity to seek) an independent lawyer on transaction;
3) client gives informed consent to essential terms of transaction and lawyer’s role in transaction, including whether the lawyer is representing client in transaction
Exception: standard commercial or other ordinary business transactions which client markets to others are not subject to this rule because client is not relying on lawyer’s legal advice to complete the transaction
lawsuits between current and former clients
may represent a current client in action against former client except:
a) when your current client wants to sue your former client in a matter that is substantially related to prior representation, OR
b) when during representation of the former client you learned confidential info that is now relevant to action by current client
NOTE: if confidential info has become generally known to public, or if former client consents in writing –> may represent
BUT: it is unconsentable to represent a current client against another current client–don’t get tricked, NEVER allowed even with client consent or unrelated matters!
representing an organization
1) lawyer for a corporation or partnership represents entity, NOT Ds or Os or employees. If interests may appear to differ, lawyer shall explain that the lawyer is the lawyer for the entity/corp and NOT any constituents
2) if lawyer for org knows that an officer, employee, or other person associated with org is engaged in action or intends to act or refuses to act in a matter related to the representation that:
i) is a violation of a law that reasonably might be imputed to org; AND
ii) is likely to result in substantial injury to org,
THEN lawyer shall proceed as is reasonably necessary in best interest of org
Reasonable measures include:
- asking reconsideration of matter
- advising that a separate legal opinion on matter be sought for presentation to an appropriate authority in org; and
- referring matter to higher authority in org, including, if warranted by seriousness of matter, referral to highest authority that can act on behalf of org as determined by applicable law
Any measures taken shall be designed to minimize disruption of org and risk of revealing confidential info to persons outside org
If highest authority that can act on behalf of org insists upon action, or a refusal to act, that is clearly in violation of law and is likely to result in substantial injury to org, lawyer may reveal confidential info if permitted by exceptions to confidentiality; and may withdraw from representation
limiting liability and settling malpractice claims
1) lawyer shall not make an agreement prospectively limiting lawyer’s liability to client for malpractice
2) lawyer shall not settle a claim for legal malpractice with client or former client unless client or former client is advised in writing of desirability of seeking independent legal counsel
