Conflicts Of Interest Flashcards
COI - What constitutes a firm?
Many factors
- Formal agreement
- Perception: whether they hold themselves out as if they practice as a firm
- Sharing revenues and responsibilities
- Physical access to client files
- Routine talk about client matters
- Purpose Served: whether purpose of the COI rule would be served by imputing to the group
Imputed Disqualifications Exceptions
COI will generally not be imputed if
- Uniquely personal to L AND does not present a significant risk of materially limiting rep of C by other L’s at firm
OR
- Timely Screening: where COI involves disqualified L’s former employment/consultations; L is screened, and given no portion of fee from matter
Concurrent COI - Current Clients (2)
L must not rep C if
- Directly Adverse rep of one C will be directly adverse to another C
- Significant Risk of Material Limitation significant risk that rep of one C will be materially limited by L’s own interest or by L’s responsibilities to another C, former C or 3P
COI - Informed Consent Will Resolve Conflict if… (4)
L may rep C if
- Won’t Impact Rep L reasonably believes L can competently and diligently rep each affected C
- Legal Rep is not prohibited by law
- Can’t Play Both Sides rep doesn’t involve assertion of a claim by one C against another C in the same litigation
- Informed Consent Confirmed impacted Cs give informed consent confirmed in writing
NOTE: informed consent can almost always be revoked
Handling Conflicts - 4 steps
In litigation and nonlitigation matters, L should
- Analyze. Analyze the facts to see if L can effectively rep Cs
- Disclose. Disclose potential COI to each C and the disadvantages
- Consent. Obtain informed consent, confirmed in writing
- Repeat. Repeat if conflict ripens into actual conflict
COI - L/C Biz Transax Adverse to C (4)
L must not enter into a biz transax with C OR knowingly acquire (ownership/possessory/security/money) interest adverse to C UNLESS
- Fair to C. Terms of transax are fair to C
- Disclosed in Writing. Terms are fully disclosed to client in writing AND expressed in a way C can reasonably understand
- Advised to Get L. Advised in writing to get the advice of an indie L
- Signed Informed Consent. C gives signed informed consent
DOES NOT APPLY TO
Ordinary fee agreement
Standard commercial transax for goods C generally holds out to public
COI - Proprietary Interest in Subj of Litigation
No.
Exception: contingent fee and liens
Delete
COI - Gifts for L - YES if… (4)
- Token Accept a small gift from C as a token of appreciation
- Relative Prepare legal instrument in which C gives L or L’s relative a subst’l gift IF C is a relative
M/B
- Seek fee-paying position H/E prohibited if L’s advice is tainted
- Accept a substantial gift H/E may be voidable for undue influence
COI - Literary/Media Righs
NO if during
L must not acquire lit/media rights to a story based in subst’l part on L’s rep of a C during the life of the matter.
H/E may do so after the legal matter is complete, including appeals
COI - Financial Assistance to Cs in Litigation
- Advance Expenses L may advance court costs and litigation expenses w/ repayment contingent on outcome of the case
- Costs for Indigent C L may pay court costs and litigation expenses for an indigent C w/o provision for repayment
- Modest Gift for Indigent C L may provide modest gifts to C for food, transportation and basic living expenses for a pro bono C with restrictions
COI - Modest Gifts Restrictions (Indigent Cs)
L must not
- Use as inducement for Rep promise/imply availability of gifts prior to retention OR as inducement after retention
- *Seek Repayment** seek/accept reimbursement from C or anyone affiliated withC
- Advertise it publicize willingness to provide such gifts to prospective clients
COI - Aggregate Settlements (3)
Only if
- Cs agree on share. Cs agree about how sum will be shared
- Full Disclosure. L discloses to each C all terms of sharing agreement (May req informed consent to get this info)
- Signed Informed Consent. Each C gives informed consent in signed writing
COI - Compensation from 3P (3)
L must not accept unless
- Informed Consent. C gives informed consent
- No Interference. 3P does not interfere with L’s judgment in rep
- Maintain Confidentiality. Arrangement does not compromise C’s confidential info
COI - Sexual Relax b/t L and C
NO. Unless predates. L who has sexual relax with C is subj to discipline whether or not C consents and whether or not C is harmed UNLESS sexual relax predates L/C relax
H/E may still cause conflict
C as an Org Rule applies to anyone who supervises/directs/regularly consults with L re org’s legal matters.
COI - Opposing former C
L must not rep C whose interests are materially adverse to those of former C in a matter that is substantially related to a matter in which L rep’d former C
UNLESS
Informed consent confirmed in writing
COI - Subst’ly related matter
Related same transax/legal dispute OR
risk confidential info will help new C subst’ risk that confidential factual info as would normally have been obtained in the prior rep would materially advance new C’s posix
COI - Disqualification - L’s Former Firm
L’s former firm is prohibited from rep’ing a person with interests materially adverse to those of a client of formerly associated L if
- subst’ly related the matter is the same/subst’ly related to that in which former L rep’d C
- any L has confidential info
COI - Disqualifiacation - L’s New Firm
L’s conflict is imputed to new firm UNLESS
- screened L is properly screened, i.e. does not work on case, discuss it, have access to files, or share fees from the matter
- notice former C is given notice
COI - Prospective C
If L obtains confidential info during a consultation with PC, L must not later rep a different person in the same/subst’ly related matter if confidential info could significantly harm PC UNLESS
- informed consent confirmed in writing from affected and prospective Cs OR
- L was careful avoided exposure to any more confidential info that’s was necc’y, disqualified L timely screened, written notice to PC
COI - Govt L > Private L
L must not rep C in a matter in which L participated personally and substantially while in government service UNLESS agency gives informed consent confirmed in writing
Matter = specific dispute involving specific facts and parties
Personally and subst’ly = L worked on the matter and it was more than trifling
Firm is disqualified unless they screen and give agency notice
COI - Former Govt L - Use of Info
L must not later rep a C whose interests are adverse to that person when info could be used to harm that person
COI - Private L > Govt L
Ordinary COI rules
AND
Personal Subst’l rules
COI - Former Judges
Same as former COI rule
COIs imputed to firms
Firms can avoid with screening H/E in addition to notice to parties, they must give notice to tribunal
