Conflicts of Interest Flashcards
General Rule for Conflicts of Interest
Rule & Procedure
Absent necessary informed consent, a lawyer must not represent a client if a conflict of interest exists.
- Does a conflict of interest exist?
- Can you obtain informed consent?
- If not, you must withdraw.
Imputation of Conflicts
Rule & Exceptions
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
Concurrent Conflicts of Interest
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
Waiver
- The lawyer has a reasonable belief they can represent each client competently & diligently
- 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
“Directly Adverse”
Examples
- 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”
“Materially Limit”
Examples
- 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
Representing Co-Parties in a Civil Matter
Procedure for Potential Conflicts
- Reasonably believe can represent both parties well.
- Explain consequences of such representation to both parties.
- Informed consent from both parties, confirmed in writing.
- Re-address conflict if it ripens to an actual, present conflict.
- Informed consent from any dropped clients, confirmed in writing
A lawyer must withdraw if a reasonable lawyer would advise any client against consent
General Rule for Conflicts with Current Clients
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
Business Transactions with Clients
Requirements
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
Lawyer’s Proprietary Interest in Litigation
Rule & Exceeptions
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)
Gifts from Clients
Rule
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).
Literary & Media Rights
Rule
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.
Financial Assistance in Litigation
Rule & Exceptions
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
Aggregate Settlement Agreements
Requirements for matters with several co-parties being represented
- Fully explain the settlement claims & apportionment for each client.
- Get informed consent from each client, confirmed in writing.
Third Party Payment for Representation
Rule
- Informed consent from client.
- Third party does not interfere with representation/relationship.
- Arrangement does not compromise client’s confidential information.
Sexual Relations with Clients
Rule & Exceptions
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
Former Client Conflicts of Interest
Fired, Withdrawed, or Completed Matters
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.
“Substantially Related”
Elements
- 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
Former Firm’s Client
Rule
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.
Disqualification
For a lawyer’s new firm
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
Disqualification
For a lawyer’s former firm
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
Prospective Client Conflicts of Interest
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
How can you overcome a prospective client conflict if cannot obtain informed consent from both clients?
- Demonstrate the disqualified lawyer with confidential information made sure to avoid exposure that was more than necessary to determine a conflict.
- Demonstrate the disqualified lawyer is properly screened.
- Give written notice to the prospective client.
Government Conflicts
Government to Private Practice & vice versa
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
Confidential Government Information
Rule for persons against private clients
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.
Former Judge or Third Party Neutral
Rule
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
Negotiating for Employment
For government employees, judges, or thrid party neutrals
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
