Conflicts of Interest Flashcards

1
Q

duty of loyalty

A

lawyer owes duty of loyalty to client and must avoid or properly address any conflicts of interest

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2
Q

imputation of conflict

A

generally when a lawyer cannot take matter b/c of conflict, other lawyers in firm are barred from taking on that matter. exceptions:

  1. conflict is uniquely personal to disqualified lawyer and would not materially limit the rep of the client by the other lawyers in the firm
  2. lawyer is properly screened and affected person given notice

**can also be WAIVED by the affected clients

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3
Q

when does a conflict exist

A

when there is direct adversity or material limitation

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4
Q

how to resolve a conflict

A
  1. reasonably believe you can competently and diligently represent client despite conflict
  2. representation not prohibited by law
  3. representation does not involve asserting a claim by one client against another client represented by lawyer in the same proceeding
  4. each affected client gives informed consent, confirmed in writing (CA: disclosure + consent must both be in writing)
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5
Q

direct adversity conflicts

A

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

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6
Q

material limitation conflicts

A

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

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7
Q

business transactions with clients

A

must not enter into or knowingly acquire an ownership, possessory, security, or money interest adverse to client unless unless (First Discuss Over Coffee):

  1. terms are FAIR to client
  2. terms and lawyer role are fully DISCLOSED to client writing that is reasonably understandable
  3. client advised in writing that they should get advise from OUTSIDE LAWYER
  4. 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

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8
Q

misuse of client’s confidential info

A

must not use confidential info a client’s disadvantage unless client gives informed consent or some exception applies

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9
Q

substantial gifts from clients

A

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

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10
Q

financial assistance

A

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

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11
Q

aggregate settlement agreements

A

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

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12
Q

compensation from someone other than client

A

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

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13
Q

settling existing malpractice claim w/ unrepresented client or former client

A

have to advise in writing that independent counsel is desirable and give the person a reliable chance to consult w/ independent counsel

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14
Q

prospectively limiting liability for malpractice

A

can’t do it unless client independent represented
CA: can’t do it at all

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15
Q

acquiring literary or media rights

A

can’t do during rep but may acquire after legal matter is done/including eppeals
CA: treated as biz transaction

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16
Q

acquiring proprietary interest

A

CA: treats as biz transaction

17
Q

foreclosure or sale (CA only)

A

lawyer cant purchase property directly or indirectly in action where they are a party or rep seller if purchaser is family member/other lawyer at firm

18
Q

sexual relationships

A

not allowed unless predates l-c relationship
- no imputation
- pre-existing might still cause conflict if it will materially limit the l-c relationship and implicate general conflict of interest rule for current clients

19
Q

opposing former client in same or substantially the same matter

A

can’t represent one client whose interests are materially adverse to those of a former client in a matter that is the same or substantially related to a matter in which the lawyer represented the former client

former client can consent in writing (but consider whether still risk of material limitation by former client’s confidential info)

20
Q

what is a substantially related matter

A

same transaction/dispute or substantial risk that confidential factual info would have been normally obtained in prior would materially advance client’s position int he subsequent matter (actual info exchange is not required)

21
Q

what to do if lawyer’s former client conflict arises out of a lawyer’s association with a former firm (firms conflict)

A

imputation will be cured if screened, no fee sharing, and former client is given notice

CA: screening only cures if the disqualified lawyer did not substantially participate in the same or substantially related matter at the former firm

*former client can consent in writing

22
Q

what to do when firm wants to represent an opposing client of a departed lawyer

A

generally not prohibited unless:

  1. matter is the same or substantially related to that in which the formerly associated lawyer represented the former client AND
  2. at least one remaining lawyer in the firm has confidential info that is material to the matter

*former client can consent in writing

23
Q

opposing prospective client in substantially related matter

A

can’t if info could be significantly harmful (CA: material) to prospective client unless BOTH current and prospective client provide informed consent, confirmed in writing

24
Q
A