Conflicts of interest

Question 1

exceptions to imputation of COI

Answer 1

conflict is uniquely personal to the disqualified lawyer

conflicts from disqualified lawyer’s past work can be cured by screening them from the case

Question 2

when is a conflict unwaivable by IWC?

Answer 2

being on opposite sides of the same litigation

transactions OK

Question 3

how to get around a direct or material limitation conflict?

Answer 3

1. lawyer reasonably believes she can represent each client competently and diligently
2. informed consent in writing from each affected client.
   informed: explain risks and alternatives; if confidentiality means you cant fully inform a client, then NO IWC; can explain in person then email writing after memorializing the disclosure

consent may be revoked by client at any time

Question 4

what is a direct adversity conflict and what are the examples?

Answer 4

COI with a current client

includes representing client’s opponent in ANOTHER unrelated matter; cross examining a current client

Question 5

What is a concurrent significant risk conflict? When is representing co-parties ok?

Answer 5

rep will be material limited by lawyer’s duty to former, current client or personal relationship

includes representing co-parties in a criminal case, co-parties in civil cases are probably OK as long as you reasonably believe you can represent them fully and you explain consequences and obtain informed consent

must readdress conflict is potential conflict becomes real

must withdraw if reasonable lawyer would advise any client against consent

Must obtain consent of dropped clients if continue to represent any co-parties

Question 6

true or false: you can represent two unrelated clients if you are taking opposite legal positions

Answer 6

YES but NOT if there is significant risk that one case becomes controlling precedent for the other, then your ability to represent the other’s best interest will be materially limited. OK with IWC

Question 7

can COI with lawyer’s personal interest be waived with IWC?

Answer 7

yes

Question 8

if a current client wants to sue former client, what kind of conflict is this?

Answer 8

materials limitation conflict, can be waived with IWC

Question 9

when can you use confidential client information against them?

Answer 9

with informed consent (no writing required)
or if disclosure is allowed under the rules

Question 10

strict requirements governing bis transaction with clients if they pay you in stocks, if you are selling them accounting services, etc)

Answer 10

tx must be fair and reasonable

must disclose all terms to client in writing in a way client understands

advise to seek independent counsel and give them reasonable opportunity to do so

IWC SIGNED by client

you buy a donut from client’s donut shop –> doesn’t count when you are a normal customer

Question 11

true or false: you can take a proprietary interest in the subject matter of the litigation with IWC

Answer 11

NO

But transactional matters are OK as bis tx with client

Question 12

what are the two exceptions to acquiring an interest in subject matter of litigation?

Answer 12

contingent fees
lien on property to secure fees

Question 13

are gifts from clients ok? what are the exceptions?

Answer 13

yes; though gift might be voidable under contract law due to undue influence

If client is not close relative:
Not ok to (impliedly) solicit a gift
Not ok to prepare will to give yourself a gift

Question 14

can a lawyer obtain a literary or media rights to story that is based on the representation

Answer 14

Yes, but only after the case is over. cannot agree to use interest as fee

Question 15

true or false: you can let your friend loan money to the client if there is case or anticipated litigation

Answer 15

NO

but exceptions:
* may advance litigation expenses
* ONLY for indigent clients can you advance court costs but not have them pay you back even if you win
* ONLY for PRO BONO indigent clients, you can support their modest basic living expenses (but you cant advertise this) but cannot give loans

Question 16

what are your obligations regarding aggregate settlement agreements

Answer 16

fully explain the claims and what everyone is getting
each client must give SIGNED IWC

Question 17

can a third party pay the client’s legal fees?

Answer 17

yes but client must give informed consent (no writing required)
* 3P cannot interfere for lawyer-client relationship
* 3P cannot get confidential information

Question 18

true or false: you can enter a sexual relationship with a client

Answer 18

no, only preexisting sexual relationships are ok

Question 19

sexual relationship rule for in house counsel

Answer 19

you cant have a sexual relationship with anyone who supervise, direct, or regularly consults with you

Question 20

true or false: your COI based on a preexisting sexual relationship is imputed to the firm

Answer 20

No, because it’s a personal conflict

Question 21

true or false: even with client consent, a lawyer litigating a matter for a client must not assert a claim against another client whom the lawyer represents in an unrelated matter

Answer 21

False, if unrelated matter, COI is waivable.

COI is NOT waivable in the same litigation

Question 22

true or false: lawyers at the same firm can represent two different clients who are economically adverse (competitors), but not legally adverse wihtout IWC

Answer 22

true. Can obtain consent for client goodwill, but not necessary

Question 23

In class action litigation, are the unnamed members of a class ordinarily are not regarded as clients for purposes of the “direct adversity” conflicts rule?

Answer 23

NO; you can sue unnamed members you previously represented without consent

Question 24

Do the conflicts rule for gifts from clients prohibit a lawyer from seeking to have herself or her colleague named as executor of an estate or counsel to the executor or to some other fee-paying position.

Answer 24

no, can be executor with IWC

Question 25

what are the two COI situations where IWC must be SIGNED by a client?

Answer 25

business transaction with client

aggregate settlement agreements

Question 26

under what circumstances can you rep one client and then sue them five years later for an unrelated matter?

Answer 26

you cannot use former client’s confidential information against them

you cant rep new client against former client if the matter is substantially related or the same without IWC

Question 27

can you work on opposite side if you acquired confidential information while at a former firm?

Answer 27

ONLY with former client’s consent

Question 28

what are the requirements for screening lawyers with former client conflict?

Answer 28

no sharing of fees,
no access to case files,
notice to former client with disclosure about screening procedures ,
update to former clients

Question 29

true or false: when a client leaves, firm is disqualified from representing other side in substantially related matter if even one lawyer who is still at the firm has confidential information about the case

Answer 29

true, unless former client consents

but if no other lawyer has confidential information, then no COI

Question 30

do you owe duty of loyalty to a prospective client? is ti imputed to the firm?

Answer 30

no adverse rep in same or subs. related matter if you acquried confidential information from prospective client that would be significantly harmful to that prospective client

waivable with consent

imputed COI, can screen if you took care to limit confidential information you acquried

Question 31

when can you work on the same matter for a private client if you PERSONALLY and SUBSTANTIALLY worked on the SAME MATTER while in government?

Answer 31

government agency has to consent

Question 32

for government COI, what counts as the same matter?

Answer 32

only when particular parties or facts are involved.

does not apply if you are drafting legislation that applies to everyone

Question 33

Are former government COI imputed to the firm?

Answer 33

yes, can cure with screening and notify government agency

Question 34

true or false: if you acquire confidential government information (info government is not required to disclose to the public) about someone, you cannot rep adverse client using that information

Answer 34

true

Question 35

true or false: you cannot take part in any matter you were personally and substantially involved in at previous private firm when you go to government

Answer 35

true, but can with government agency’s consent

if you are opposing a former client in the same matter, you have to get their consent as well (as the government’s consent)

Question 36

if you were judge or clerk and go to private practice, can you rep a party you worked on before? is COI imputed and curable with screening?

Answer 36

A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as a judge or other adjudicative officer (e.g., a referee or special master) or as a law clerk to such person, or as an arbitrator, mediator, or other third-party neutral, unless ALL parties to the proceedings give informed consent, confirmed in writing.

it is imputed and can be cured with screening and notifying ALL parties involved, including the court

Question 37

Can you negotiate for employment with a private party you are working with if you are a government worker

Answer 37

NO, unless you are a law clerk, then you can as long as you let the judge know

Question 38

for purpose of COI, when are matters “substantially related”?

Answer 38

Matters are “substantially related” if: (i) they involve the same transaction or legal dispute, or (ii) there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the new client’s position.

Question 39

true or false: if a lawyer routinely handled a type of problem for a former client, the lawyer may later oppose that former client in a factually distinct problem of the same general type.

Answer 39

true
e.g. lawyer handled breach of contract suits for Corp before, Now lawyer wants to rep individual tenant for breach of contract claim against Corp. there is NO COI because the new client presents a factually distinct problem