CONFLICTS OF INTEREST Flashcards
COI general rule
Absent the necessary informed consent , a lawyer must not represent a client if a conflict of interest exists.
What must a lawyer do if a COI is apparent before the lawyer take’s on a clients matter?
Cannot take it on
What if a COI becomes apparent after the lawyer has taken on the client’s matter & informed consent will not solve the problem?
Lawyer must withdraw.
What happens if a lawyer fails to handle a COI properly?
(1) disqualification as counsel in a litigated matter, (2) professional discipline, and (3) civil liability for legal malpractice.
Concurrent Conflicts of Interest (exists in which two situations?)
(1) representation of one client will be directly adverse to another client; OR
(2) there is a significant risk that the representation of one client will be materially limited by the lawyer’s own interest or by the lawyer’s responsibilities to another client, a former client, or a third person.
When can informed consent solve a concurrent COI? (3 conditions)
(1) lawyer reasonably believes that he can completely and diligently represent each affected client, despite the conflict of interest; (2) the representation is not prohibited by law; and (3) the representation does not involve asserting a claim by one client against another client represented by that lawyer in the same litigation; and (4) each affected client gives informed consent, confirmed in writing.
Requirements of Client’s Consent?
(1) must meet reasonable lawyer std
(2) Must be informed
(3) must be confirmed in writing
What is the reasonable lawyer std (concerning consent)
reasonable lawyer looking at the facts would conclude that the client’s interests would not be adequately protected in light of the conflict, then the conflict is unconsentable, meaning that the client’s consent will not solve the conflict.
What does it mean the the consent must be “confirmed in writing”:
means either of two things: (1) there is a
tangible or electronic record that is physically or electronically signed by the client; or (2) there is an oral consent that is promptly memorialized in a tangible or electronic record that is promptly sent to the client.
What does it mean that the client is informed (concerning consent)
means that the affected client is aware of all of the relevant circumstances, reasonable alternatives, and foreseeable ways the conflict might harm her.
Can a client revoke consent?
Yes, they revoke previously given consent to a conflict. Depending on the facts, though, this may or may not mean that the lawyer can continue representing other clients in the matter.
Conflicts involving diversity (informed consent issue)
ABA Model Rule 1.7(a) prohibits a lawyer from representing one client whose interests are directly adverse to those of another client, unless both of the affected clients give their informed consent, confirmed in writing.
