Conflicts of interest Flashcards
exceptions to imputation of COI
conflict is uniquely personal to the disqualified lawyer
conflicts from disqualified lawyer’s past work can be cured by screening them from the case
when is a conflict unwaivable by IWC?
being on opposite sides of the same litigation
transactions OK
how to get around a direct or material limitation conflict?
- lawyer reasonably believes she can represent each client competently and diligently
- 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
what is a direct adversity conflict and what are the examples?
COI with a current client
includes representing client’s opponent in ANOTHER unrelated matter; cross examining a current client
What is a concurrent significant risk conflict? When is representing co-parties ok?
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
true or false: you can represent two unrelated clients if you are taking opposite legal positions
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
can COI with lawyer’s personal interest be waived with IWC?
yes
if a current client wants to sue former client, what kind of conflict is this?
materials limitation conflict, can be waived with IWC
when can you use confidential client information against them?
with informed consent (no writing required)
or if disclosure is allowed under the rules
strict requirements governing bis transaction with clients if they pay you in stocks, if you are selling them accounting services, etc)
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
true or false: you can take a proprietary interest in the subject matter of the litigation with IWC
NO
But transactional matters are OK as bis tx with client
what are the two exceptions to acquiring an interest in subject matter of litigation?
contingent fees
lien on property to secure fees
are gifts from clients ok? what are the exceptions?
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
can a lawyer obtain a literary or media rights to story that is based on the representation
Yes, but only after the case is over. cannot agree to use interest as fee
true or false: you can let your friend loan money to the client if there is case or anticipated litigation
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
what are your obligations regarding aggregate settlement agreements
fully explain the claims and what everyone is getting
each client must give SIGNED IWC
can a third party pay the client’s legal fees?
yes but client must give informed consent (no writing required)
* 3P cannot interfere for lawyer-client relationship
* 3P cannot get confidential information
true or false: you can enter a sexual relationship with a client
no, only preexisting sexual relationships are ok
sexual relationship rule for in house counsel
you cant have a sexual relationship with anyone who supervise, direct, or regularly consults with you
true or false: your COI based on a preexisting sexual relationship is imputed to the firm
No, because it’s a personal conflict
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
False, if unrelated matter, COI is waivable.
COI is NOT waivable in the same litigation
true or false: lawyers at the same firm can represent two different clients who are economically adverse (competitors), but not legally adverse wihtout IWC
true. Can obtain consent for client goodwill, but not necessary
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?
NO; you can sue unnamed members you previously represented without consent
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.
no, can be executor with IWC
what are the two COI situations where IWC must be SIGNED by a client?
business transaction with client
aggregate settlement agreements
under what circumstances can you rep one client and then sue them five years later for an unrelated matter?
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
can you work on opposite side if you acquired confidential information while at a former firm?
ONLY with former client’s consent
what are the requirements for screening lawyers with former client conflict?
no sharing of fees,
no access to case files,
notice to former client with disclosure about screening procedures ,
update to former clients
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
true, unless former client consents
but if no other lawyer has confidential information, then no COI
do you owe duty of loyalty to a prospective client? is ti imputed to the firm?
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
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?
government agency has to consent
for government COI, what counts as the same matter?
only when particular parties or facts are involved.
does not apply if you are drafting legislation that applies to everyone
Are former government COI imputed to the firm?
yes, can cure with screening and notify government agency
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
true
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
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)
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?
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
Can you negotiate for employment with a private party you are working with if you are a government worker
NO, unless you are a law clerk, then you can as long as you let the judge know
for purpose of COI, when are matters “substantially related”?
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.
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.
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
