Conflicts of Interest

Question 1

General Rule for Conflicts of Interest

Rule & Procedure

Answer 1

Absent necessary informed consent, a lawyer must not represent a client if a conflict of interest exists.

1. Does a conflict of interest exist?
2. Can you obtain informed consent?
3. If not, you must withdraw.

Question 2

Imputation of Conflicts

Rule & Exceptions

Answer 2

Conflicts are imputed to everyone at a firm except when:
* conflict is unique to the lawyer
* the lawyer can be properly screened

Written notice of screening procedures must be sent to the client and the lawyer must not be apportioned any part of the fee for the matter

Question 3

Concurrent Conflicts of Interest

Answer 3

A lawyer cannot represent a client if:
1. Representation will be directly adverse to another client OR
2. There is a significant risk that representation of 1 client will be materially limited by the interest of another client

Question 4

Waiver

Answer 4

1. The lawyer has a reasonable belief they can represent each client competently & diligently
2. Each client gives informed consent, confirmed in writing

Consent may be revoked at any time

If a reasonable lawyer would conclude a client’s interests would not be adequately protected in light of the conflict, then the conflict is unconsentable

Question 5

“Directly Adverse”

Examples

Answer 5

• Representing clients on opposite sides of the same matter (unconsentable).
• Representing a client’s opponent from another matter.
• Cross-examining current client in another matter.

Unnamed members of a class action are ordinarily not regarded as clients for the purpose of “direct adversity”

Question 6

“Materially Limit”

Examples

Answer 6

• Lawyer’s responsibilities to a current client, former client, or third person.
• Lawyer’s personal interests (financial, relational, etc.).
• Defending 2 criminal defendants in the same matter. (not prohibited by high risk)
• Lawyer is a corporate director for a client.
• Lawyer acts as a fiduciary for a client.

Personal conflicts are not imputed to a firm

Question 7

Representing Co-Parties in a Civil Matter

Procedure for Potential Conflicts

Answer 7

1. Reasonably believe can represent both parties well.
2. Explain consequences of such representation to both parties.
3. Informed consent from both parties, confirmed in writing.
4. Re-address conflict if it ripens to an actual, present conflict.
5. Informed consent from any dropped clients, confirmed in writing

A lawyer must withdraw if a reasonable lawyer would advise any client against consent

Question 8

General Rule for Conflicts with Current Clients

Answer 8

A lawyer must not use a client’s confidential information against them, unless the client gives informed consent or another exception to confidentialy applies.

Also applies to information of a former or prospective client

Question 9

Business Transactions with Clients

Requirements

Answer 9

Transaction must:
1. Be fair & reasonable to client.
2. Disclose all terms to client’s understanding, in writing.
3. Advise client in writing to obtain independent counsel & allow time for such.
4. Get informed consent from client, confirmed in writing.

These requirements do not apply to ordinary fee agreements or to standard commercial transactions that client makes available to the public

Question 10

Lawyer’s Proprietary Interest in Litigation

Rule & Exceeptions

Answer 10

A lawyer must not acquire a proprietary interest in a cause of action or the subject matter of litigation for their client, except for:
* contingent fees
* liens on client’s recovery for payment of legal fees (if authorized by law)

Question 11

Gifts from Clients

Rule

Answer 11

A lawyer cannot solicit a substantial gift (unless the client is a relative) or prepare an instrument that gives the lawyer or their relative a substantial gift (unless the donee is related to the client).

Question 12

Literary & Media Rights

Rule

Answer 12

A lawyer cannot have literary or media rights/interest to a story based in substantial part on infromation relating to the lawyer’s representation of a client, until after the matter is complete.

Question 13

Financial Assistance in Litigation

Rule & Exceptions

Answer 13

A lawyer cannot financially assist a client in connection with pending/contemplated litigation and cannot gruarantee a loan from someone else.

Exceptions include:
* Advancing court costs & expenses
* Paying court costs & expenses for indigent clients
* Modest gifts for basic living expenses for indigent clients (pro bono)

Living expenses include food, rent, transportation, medicine, etc.

For advance payments, repyament by client may be contingent on the outcome

Question 14

Aggregate Settlement Agreements

Requirements for matters with several co-parties being represented

Answer 14

1. Fully explain the settlement claims & apportionment for each client.
2. Get informed consent from each client, confirmed in writing.

Question 15

Third Party Payment for Representation

Rule

Answer 15

1. Informed consent from client.
2. Third party does not interfere with representation/relationship.
3. Arrangement does not compromise client’s confidential information.

Question 16

Sexual Relations with Clients

Rule & Exceptions

Answer 16

A lawyer cannot have a sexual relationship with a client, unless such predated the lawyer-client relationship.

**If* the sexual relationship would still materially limit the lawyer-client relationship, then the lawyer must consider withdrawal.

Considered a personal conflict, so it is not imputed to the firm

Applies to any person who supervises, directs, or regularly consults with the lawyer of an organizational client

Question 17

Former Client Conflicts of Interest

Fired, Withdrawed, or Completed Matters

Answer 17

A lawyer may not represent a client against a former client if:
1. the matter is the same or substantially related to the former client’s matter

unless the former client gives informed consent confirmed in writing.

Question 18

“Substantially Related”

Elements

Answer 18

• Matters involve the same transaction or legal dispute OR
• There is a substantial risk confidential factual information as would normally have been obtained in the prior representation would materially advance the new client’s position

If a lawyer routinely handled a type of problem for a former client, they may later oppose the former client in a factually distinct problem of the same general type without consent from the former client

Question 19

Former Firm’s Client

Rule

Answer 19

A lawyer may not represent a new client in the same or substantially related matter of a former firm’s client if the new client’s interests are materially adverse to the former’s, unless the former client gives informed consent confirmed in writing.

Question 20

Disqualification

For a lawyer’s new firm

Answer 20

If a lawyer brings a conflict at their new firm, they may be properly screened so that the whole firm is not disqualified from representing the client.

Must provide written notice to client about procedures & screen updates

Question 21

Disqualification

For a lawyer’s former firm

Answer 21

A lawyer’s former firm is disqualified from representing any person with interersts materially adverse to those of the lawyer’s former client if:
* representing in opposition in the same or susbtantially related matter AND
* at least 1 lawyer at the firm who has confidential information about the matter.

The former client may give informed consent, confirmed in writing

Question 22

Prospective Client Conflicts of Interest

Answer 22

A lawyer may not represent a client in the same or substantially related matter of a prospective client if:
1. obtained confidential information from the prospective client that may significantly harm their position.

Conflict imputed to the firm, but may properly screen

Question 23

How can you overcome a prospective client conflict if cannot obtain informed consent from both clients?

Answer 23

1. Demonstrate the disqualified lawyer with confidential information made sure to avoid exposure that was more than necessary to determine a conflict.
2. Demonstrate the disqualified lawyer is properly screened.
3. Give written notice to the prospective client.

Question 24

Government Conflicts

Government to Private Practice & vice versa

Answer 24

A former government lawyer cannot represent a private client without the government agency’s consent if:
1. it is the same matter (specific facts & parties)
2. lawyer worked personally & substantially on the matter

Conflict is imputed to the firm unless lawyer can be properly screened

Question 25

Confidential Government Information

Rule for persons against private clients

Answer 25

If the lawyer acquired confidential information about a person during their government employment, then cannot represent a private client against that person if:
1. the information could be used to materially disadvantage the person.

Question 26

Former Judge or Third Party Neutral

Rule

Answer 26

A lawyer cannot represent a client in a matter the lawyer was personally & substantially involved in as a judicial actor, third party neutral, or law clerk, unless all parties consent.

Conflict imputed to firm, but lawyer may be properly screened

Question 27

Negotiating for Employment

For government employees, judges, or thrid party neutrals

Answer 27

A government employee, judge, or third party neutral cannot negotiate for private employment with any party in a matter they are personally & substantially involved with.

Exception: law clerks may do so if give advanced notice to the judge