Conflicts of Interest Flashcards
duty of loyalty
lawyer owes duty of loyalty to client and must avoid or properly address any conflicts of interest
imputation of conflict
generally when a lawyer cannot take matter b/c of conflict, other lawyers in firm are barred from taking on that matter. exceptions:
- conflict is uniquely personal to disqualified lawyer and would not materially limit the rep of the client by the other lawyers in the firm
- lawyer is properly screened and affected person given notice
**can also be WAIVED by the affected clients
when does a conflict exist
when there is direct adversity or material limitation
how to resolve a conflict
- reasonably believe you can competently and diligently represent client despite conflict
- representation not prohibited by law
- representation does not involve asserting a claim by one client against another client represented by lawyer in the same proceeding
- each affected client gives informed consent, confirmed in writing (CA: disclosure + consent must both be in writing)
direct adversity conflicts
generally must not represent, even if in totally unrelated matters
mere economic adversity does not amount to direct adversity - can simultaneously represent competitors as long as they are not adverse to each other in any of the matters
material limitation conflicts
relevant in situation where lawyer’s ability to represent a client could be affected (own interest, or responsibilities to another client/former client/third person unless waived)
CA: written disclosure for any sort of business or personal conflicts related to someone in the client’s matter, or opposing attorney in the matter
business transactions with clients
must not enter into or knowingly acquire an ownership, possessory, security, or money interest adverse to client unless unless (First Discuss Over Coffee):
- terms are FAIR to client
- terms and lawyer role are fully DISCLOSED to client writing that is reasonably understandable
- client advised in writing that they should get advise from OUTSIDE LAWYER
- client gives informed CONSENT in writing signed by client
**rule doesn’t apply to standard commercial transactions for products/services that client generally markets to other
misuse of client’s confidential info
must not use confidential info a client’s disadvantage unless client gives informed consent or some exception applies
substantial gifts from clients
must not solicit gifts or prepare instrument unless client is related to recipient of gift
CA: can prepare instrument if client has been advised by independent lawyer who has provided certificate of independent review
financial assistance
can’t in connection w/ pending or contemplated litigation. exceptions:
1. advance court costs and lit expense
2. pay court costs for indigent clients
3. modest gifts for pro bono indigent client
CA: applies in both lit and non-lit contexts; can’t promise to pay debts
- after lawyer hired, lawyer can lend money to client for any purpose if client gives written promise to repay
- lawyer can pay client’s expenses to third party w/ clients consent
aggregate settlement agreements
an agreement where multiple parties settle their claim at the same time; must not participate unless lawyer discloses to each client existence/nature of all claims/pleas and each clients gives informed consent in signed writing
compensation from someone other than client
client needs to give informed consent, no interference w/ lawyer’s independent professional judgment or w/ lawyer-client relationship, confidential info still protected
CA requires written consent
settling existing malpractice claim w/ unrepresented client or former client
have to advise in writing that independent counsel is desirable and give the person a reliable chance to consult w/ independent counsel
prospectively limiting liability for malpractice
can’t do it unless client independent represented
CA: can’t do it at all
acquiring literary or media rights
can’t do during rep but may acquire after legal matter is done/including eppeals
CA: treated as biz transaction