conflicts of interest

Question 1

what are the two ways a violation of conflict of interests is enforced

Answer 1

litigation sanctions (ie disqualification from rep) and disciplinary sanctions

Question 2

who enforces the conflict of intersts issue

Answer 2

the trial court

Question 3

what are the two types of conflicts

Answer 3

direct adversity with concurrent clients and material limitation on lawyers ability to rep the client

Question 4

what are the requirements to waive a conflict (3)

Answer 4

1. client’s informed consent in writing,
2. laywer has reasonble belief that the rep will not adversly affect rep of another client AND
3. all affected clients must waive

Question 5

what is the basic rule when it comes to former clients ( ie if a lawyer previously repped a client in a matter)

Answer 5

the lawyer cant rep another person in the SAME matter or a SUBTANTIALLY RELATED matter where the person’s interests are MATERIALLY ADVERSE to the interest of the former client

Question 6

what is the exception to the basic rule of former client rep conflicts

Answer 6

the lawyer can rep the new client as long as the former client gives informed consent, confirmed in writing

Question 7

What is the test to determine if rep of new client will be substantially related to rep of old client

Answer 7

1. what was the scope of the prior rep
2. COULD the lawyer have learned info?
3. would that info be useful in the new litigation?

Question 8

when can an attorney acquire story rights to a case

Answer 8

when the rep of client is done

Question 9

can attys loan to clients

Answer 9

no

Question 10

when can attys make advances to clients

Answer 10

only in court cases; the client is still ultimately responsible

Question 11

what kind of client can an atty pay the COURT costs of

Answer 11

indigent clients; but it must be a court related cost

Question 12

what is the rule on repayment of advanced court costs for clients

Answer 12

repayment can be contingent on the outcome

Question 13

what is the exception to the no sex with clients rule

Answer 13

pre- existing relationship that was sexual before the rep

Question 14

is a sexual relationship conflict imputed/contagious to the firm

Answer 14

no it is a personal disqualification

Question 15

what is the exception to the rule that a lawyer cant rep a case where the lawyer might be a witness

Answer 15

where there are uncontested issues or if the questions are about the service value of the case

Question 16

what do we mean by a contagious conflct

Answer 16

if a lawyer is in conflict w rep of a client, no laywer in the firm may rep the cliet

Question 17

what are the excpetions to the imputed firm disqualification/contagious lawyer

Answer 17

the client consents (informed and in writing)
the conflict is that of a personal nature (sex with clients)

Question 18

what happens if a new lawyer is contagious with a conflict

Answer 18

the new lawyer will not give the law firm a conflict as long as there is instant screening and the new lawyer receives no part of the fee

the affected client also must be notified

Question 19

what is the rule concerning government lawyers and conflicts

Answer 19

a former government lawyer who becomes associated with a firm CAN create a conflict

Question 20

what is the rule with lawyers in negotiating for employment? who is the exception

Answer 20

they cannot negotiate for employment with a party if that party is involved in a matter in which the lawyer participates

law clerks can seek employment with parties before the court, as long as they tell the judge

Question 21

can info learned from a prospective client create a conflict

Answer 21

yes if the attory asks/solcits info; unsocilicted info does not trigger

Question 22

is a conflict via a prospective client contagious

Answer 22

yes but it can be avoided by immediate screening of the lawyer who dealt with pro

Question 23

what is screening (3)

Answer 23

no info is passed between the incoming lawyer and the firm
the lawyer gets no part of the fees AND
the affected client is put on notice, BUT CONSENT IS NOT REQUIRED

Question 24

is the third party payor (ie insurance agency) also the client

Answer 24

no

Question 25

what are three forms of impremissible (ie not allowed ) interernce with the atty’s rep of a client by a third party (ie insurance)

Answer 25

1. work control (ie task approval)
2. info control
3. settlement control

Question 26

can a client consent to the not allowed internence via a third pary

Answer 26

yes

Question 27

is an agreement to eliminate or limit malpractice valid

Answer 27

no

Question 28

when an org is the atty client, who does the atty rep

Answer 28

the org, not its consitutents

Question 29

is join rep of an org and its clients allowed

Answer 29

yes

Question 30

what is the control group of an org? can you have joint rep of this group

Answer 30

the princpal managers of the org and yes

Question 31

what is the rule in regards to bad behavior of an org and an atty’s obligations (three things)

Answer 31

1. atty knows of a violation that may be imputed to the org
2. that violation will likely result in SUBSTANTIAL INJURY to the org
3. then the lawyer should take measures including referring the matter to the highest authority in the org

Question 32

what can the lawyer do if the org they rep doesnt correct their violation of the law after he told the highest autoirty

Answer 32

he may resign, also a noisy withdrawal is allowed as well