conflicts of interest Flashcards
what are the two ways a violation of conflict of interests is enforced
litigation sanctions (ie disqualification from rep) and disciplinary sanctions
who enforces the conflict of intersts issue
the trial court
what are the two types of conflicts
direct adversity with concurrent clients and material limitation on lawyers ability to rep the client
what are the requirements to waive a conflict (3)
- client’s informed consent in writing,
- laywer has reasonble belief that the rep will not adversly affect rep of another client AND
- all affected clients must waive
what is the basic rule when it comes to former clients ( ie if a lawyer previously repped a client in a matter)
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
what is the exception to the basic rule of former client rep conflicts
the lawyer can rep the new client as long as the former client gives informed consent, confirmed in writing
What is the test to determine if rep of new client will be substantially related to rep of old client
- what was the scope of the prior rep
- COULD the lawyer have learned info?
- would that info be useful in the new litigation?
when can an attorney acquire story rights to a case
when the rep of client is done
can attys loan to clients
no
when can attys make advances to clients
only in court cases; the client is still ultimately responsible
what kind of client can an atty pay the COURT costs of
indigent clients; but it must be a court related cost
what is the rule on repayment of advanced court costs for clients
repayment can be contingent on the outcome
what is the exception to the no sex with clients rule
pre- existing relationship that was sexual before the rep
is a sexual relationship conflict imputed/contagious to the firm
no it is a personal disqualification
what is the exception to the rule that a lawyer cant rep a case where the lawyer might be a witness
where there are uncontested issues or if the questions are about the service value of the case
what do we mean by a contagious conflct
if a lawyer is in conflict w rep of a client, no laywer in the firm may rep the cliet
what are the excpetions to the imputed firm disqualification/contagious lawyer
the client consents (informed and in writing)
the conflict is that of a personal nature (sex with clients)
what happens if a new lawyer is contagious with a conflict
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
what is the rule concerning government lawyers and conflicts
a former government lawyer who becomes associated with a firm CAN create a conflict
what is the rule with lawyers in negotiating for employment? who is the exception
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
can info learned from a prospective client create a conflict
yes if the attory asks/solcits info; unsocilicted info does not trigger
is a conflict via a prospective client contagious
yes but it can be avoided by immediate screening of the lawyer who dealt with pro
what is screening (3)
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
is the third party payor (ie insurance agency) also the client
no
what are three forms of impremissible (ie not allowed ) interernce with the atty’s rep of a client by a third party (ie insurance)
- work control (ie task approval)
- info control
- settlement control
can a client consent to the not allowed internence via a third pary
yes
is an agreement to eliminate or limit malpractice valid
no
when an org is the atty client, who does the atty rep
the org, not its consitutents
is join rep of an org and its clients allowed
yes
what is the control group of an org? can you have joint rep of this group
the princpal managers of the org and yes
what is the rule in regards to bad behavior of an org and an atty’s obligations (three things)
- atty knows of a violation that may be imputed to the org
- that violation will likely result in SUBSTANTIAL INJURY to the org
- then the lawyer should take measures including referring the matter to the highest authority in the org
what can the lawyer do if the org they rep doesnt correct their violation of the law after he told the highest autoirty
he may resign, also a noisy withdrawal is allowed as well
