Conflicts of Interest

Question 1

What are the two duties owed to a client that in general give rise to Conlict of interest issue?

Answer 1

Duty of loyalty and the duty to exercise independent professional judgment

some conflict questions are connected with breaches of the duty confidentiality

Question 2

The application of many of the conflicts rules is triggered by the question of whether the conflict will…

Answer 2

Materially limit the lawyer’s representation of a client—an
objective standard.

Question 3

When is waive of conflicts permissible?

Answer 3

In general, most conflicts can be waived because we want to honor client autonomy. However, conflicts cannot be waived if sufficiently gross (concern for broader justice system)

Question 4

Does VA use a different standard from informed consent?

Answer 4

No, they just call it consent after consultation

Question 5

What are three primary sources of conflicts of interest?

Answer 5

1. Third party interference;
2. Lawyer’s personal/familial interests; and
3. Multiple client interests

Question 6

What is Third party interference? when does it usually arise? how can it be waived?

Answer 6

1. When someone who is not the client or the lawyer tries to influence the lawyer’s work for the client
2. Usually arises when the third party is paying for the lawyer’s work
3. Conflict may be waived if the client consents after consultation.

Question 7

When will a lawyer’s personal interests give rise to a conflict with client interests? Can this be waived?

Answer 7

1. A conflict exists when a lawyer’s representation of a client will be materially limited by the lawyer’s interests
2. Waiver is possible if: (1) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to the client; and (2) The client gives consent after consultation, confirmed in writing

Question 8

Lawyer’s personal interests conflict with client interests

Business Transactions—Requires that:

A client wants to sell his yacht to the lawyer. The lawyer will do
some legal work related to it.

Answer 8

1. The client’s consent be in writing
2. The client be given a reasonable opportunity to seek the advice of independent counsel
3. The transaction be objectively reasonable; and
4. The transaction itself be in writing and in terms that can be understood by the client.

These restrictions apply when the client expects the lawyer to exercise
some legal judgment.

Question 9

Lawyers are prohibited from negotiating for…

Answer 9

literary or media rights based on their clients’ stories until the conclusion of representation. No waiver of conflicts permitted.

Question 10

A lawyer is prohibited from drafting a document that makes a substantial…

Answer 10

gift to the lawyer or the lawyer’s close relative

This restriction does not apply when the donee is related to the donor.

Question 11

Sexual or amorous relationship with client?

Answer 11

Virginia has not adopted this prohibition, but it is subject to the general Rule concerning a lawyer’s personal interests materially limiting the lawyer’s representation of the client.

Question 12

What is champerty, barratry, and maintenance? What does it prohibit lawyers from doing and can it be waived?

Answer 12

Concerned with prohibiting stirring up and maintaining litigation

Lawyers are prohibited from advancing financial assistance to clients when there is pending or contemplated litigation, except that the lawyer may advance court costs.

Clients cannot waive

Also, lawyers may not acquire interest in litigation or its subject matter (does not prohibit contingency fees)

Question 13

Boundaries of lawyer’s representing multiple client’s with inconsistent interests? Waiver?

Answer 13

1. A lawyer cannot represent multiple client’s whose interest are in direct conflict. Cannot be waived
2. A lawyer may represent clients with differing interest, so long as the representation does not put the clients in direct conflict

Question 14

Duty of loyalty extends beyond representation, so when is representation of a current client prohibited based on the representaion of a former client? Waiver?

Answer 14

When there is a substantial relationship between the current representation and the former representation

Such a conflict may be waived if both clients consent after consultation.

Question 15

Although lawyers represent the organization and not its employees, when must the lawyer withdraw due to a COI?

Answer 15

If the interests of the organization and officers diverge.

Question 16

Imputed Disqualification

As a general rule:

Answer 16

when a lawyer has a conflict of interest, that conflict spreads to all the lawyers in the firm.

Question 17

Imputed Disqualification

What is screening? How does it work in VA?

Answer 17

1. specific procedures to separate the affected lawyer
2. Virginia—has not adopted the screening procedures
    Screening will not prevent discipline by the State Bar
    Might be considered by the court in deciding a motion to disqualify

Question 18

Role-Related Conflict Rules

What does the rule prohibit for former judges?

Answer 18

Prohibits a judge who participated personally and substantially as a judge from representing anyone connected with the case, unless all the parties consent after consultation

Question 19

Role-Related Conflict Rules

Rule for fomer government lawyers?

Answer 19

The lawyer may not represent a client in connection with a matter in which the lawyer participated personally and substantially as a government lawyer.

“Matter” includes adversarial activities, not non-adversarial work like rule drafting

Question 20

Role-Related Conflict Rules

A lawyer who is likely to be a witness generally should not be an advocate in the same matter, unless:

Answer 20

1. The testimony relates to an uncontested issue;
2. The testimony relates to the nature and value of legal services rendered in the case; or
3. Disqualification of the lawyer would cause the client substantial hardship